Docket No: 6306-19 Ref: Signature date Dear This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 21 October 2019. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. You enlisted in the Marine Corps and began a period of active duty on 31 October 1972. On 2 October 1972, a page 11 counseling entry was placed in your record indicating that you entered guilty plea at a special court-martial (SPCM) to charges of disrespect and assault, and the military judge directed a continuance to allow the opportunity for a psychiatric evaluation to determine if you were capable of standing trial for the alleged offenses. On 10 December 1973, you were granted a drug exemption for use of marijuana, LSD, opiates, amphetamines, barbiturates, and glue sniffing. On 20 December 1973, your medical evaluation found no diagnosis of depression or psychosis, and no drug dependency. On 21 December 1973, you began a period of unauthorized absence (UA) that continued until 27 December 1973. From your record, it appears this period of UA was never resolved. On 28 December 1973 and 31 January 1974, you were counseled regarding your extremely poor attitude and blatant disregard for military authority. On 28 February 1974, you were dropped from a drug rehabilitation program because you were not making a sincere effort. At that time you were also diagnosed as not drug dependent. On 7 March 1974, your convening authority (CA) dismissed your pending SPCM due to delay in obtaining a psychiatric evaluation. In April 1974, your CA requested a psychiatric evaluation to determine if you were capable of standing trial at general court-martial (GCM) for disobeying a commissioned officer, communicating a threat, and possession of 1.5 pounds of marijuana. On 17 April 1974, you were again evaluated at a naval hospital. On 14 May 1974, you requested a Good of the Service separation in lieu of trial by GCM (GOS/SILT). As part of your GOS/SILT request, you admitted your guilt to the aforementioned misconduct. On 22 May 1974, a staff judge advocate reviewed your GOS/SILT and found it sufficient in law and fact. On 24 May 1974, the separation authority approved your GOS/SILT and directed your separation from the naval service with an undesirable discharge. On 7 June 1974, pursuant to your request, you were discharged with an other than honorable (OTH) characterization of service. On 27 July 1979, you appeared with your legal counsel at a Naval Discharge Review Board (NDRB) hearing on your request for your discharge to be upgraded to honorable due to your purported lack of a fair and equitable hearing at the time of your discharge. You admitted to heavy drug use, but denied selling drugs. You claimed the 1.5 pounds of marijuana seized from your wall locker was not yours, but you refused to identify the owner. Alternately, you argued that you were “set-up.” You denied pre-service drug use, except glue-sniffing. The NDRB found no evidence existed in the record to indicate that you were not mentally qualified to request a GOS/SILT, and further determined that you were adequately represented by legal counsel at the time of your request. The NDRB noted that your average proficiency and conduct marks were 3.2 and 3.1 respectively, and that your 18 months of service were appropriately characterized as OTH. On 16 October 1979, the NDRB determined that your discharge should not be changed. You request that the Board upgrade your discharge to general (under honorable conditions) (GEN). You asserted you hired an attorney who recommended that you plead guilty to the charges and accept a discharge from the Marine Corps, but you were not aware that you would receive an undesirable discharge. You contend that two other Marines who were charged with the same crime went to trial, were sentenced to three months confinement, were allowed to stay in the service, and were awarded GEN discharges. Lastly, you state that your OTH discharge has prevented you from filing for disability and obtaining medical benefits. The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions. However, the Board concluded that these factors were insufficient to warrant a change to your discharge given your misconduct and specific request to be separated from the naval service in order to avoid trial by court-martial. With respect to your contentions, the Board noted that you provided no supporting evidence. Absent such evidence, the Board relied upon the presumption of regularity, and presumed that officials acted in accordance with governing law/policy and in good faith. Further, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time or a desire to obtain benefits. Regarding your contention that you need Department of Veterans Affairs (DVA) benefits, whether or not you are eligible for benefits is a matter under the cognizance of the DVA, and you may contact the nearest office of the DVA concerning your right to apply for benefits. If you have been denied benefits, you may appeal that denial under procedures established by the DVA. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.