Docket No: 6347-19
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 for Correction of Naval Records, sitting in executive session, considered your application on 21 August 2020.  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, and applicable statutes, regulations and policies.   
 
You enlisted in the Marine Corps on 14 June 1983.  On 16 August 1984, you received non-judicial punishment (NJP) for two specifications of insubordinate conduct towards a senior non-commissioned officer.  On 26 July 1985, you received NJP for violating a lawful order, drunk and disorderly conduct, and for the destruction of government property.  On 14 August 1985, you received a “Page 11” counseling warning (Page 11) documenting both NJPs.  The Page 11 warning provided you with written recommendations for corrective action and also advised you that a failure to take corrective action could result in disciplinary action and in processing for administrative separation.  However, on 4 November 1985, you received NJP for the wrongful use of a controlled substance (marijuana). 
 
Following your third NJP, your command notified you that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  Unfortunately, the administrative separation notification and statement of awareness/election of rights documentation is not in your service record.  However, the Board relied on a presumption of regularity to support the official actions of public officers.  In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Marine Corps for drug abuse.  On 16 December 1985, the command Staff Judge Advocate concluded that your administrative separation proceedings were legally and factually sufficient.  Ultimately, on 14 March 1986, you were discharged from the Marine Corps with an Other Than Honorable (OTH) characterization of service.   
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) that you hurt your knee playing football for the Marines and had minor surgery, (b) that you needed more surgery to fix your knee but recovery time would have taken you past your discharge date (EAS) so you got out early hoping to go home and have surgery but were denied several times, and (c) that you have been a hard working citizen ever since your discharge.  However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case. 
 
A review of your record confirmed that you enlisted for four years in June 1983 and you had a knee surgery scheduled for 29 November 1985.  Based on the totality of the information presented, the Board was not persuaded that post-surgery recovery time would have extended past your EAS in June 1987.  The Board also noted that your medical record indicates that you did not appear for your scheduled November 1985 surgery.   
 
Further, the Board observed that you committed additional drug-related misconduct despite the warnings in your Page 11 dated 14 August 1985 Page 11.  The Board noted the record shows you were notified of, and waived, your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time.  Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits, or enhancing educational or employment opportunities.  Additionally, the Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade.  The Board determined that, in fairness to those Marines who serve honorably and without incident, Marines should receive no higher discharge characterization than is due.  The Board concluded that, even though flawless service is not required for an honorable discharge, in this case an OTH was still appropriate.   
 
The Board considered your post-service accomplishments, but ultimately concluded the misconduct documented in your record still warranted an OTH characterization.  Lastly, the Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 3.80 in conduct.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your serious misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of discharge.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your serious misconduct and your disregard for good order and discipline clearly merited your receipt of an OTH discharge.   
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, such as positive or negative post-service conduct, including any arrests or convictions.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 
 
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 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.   

Sincerely,