DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 6527-19 Ref: Signature Date 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 case on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 24 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 and applicable statutes, regulations and policies. A review of your record shows that you entered active duty with the Marine Corps in May 2011. On 29 April 2013, you were counselled for forwarding an explicit picture of a female Marine. Subsequently, non-judicial punishment was imposed on you for three orders violations involving your failure to follow barracks regulations. Based on your misconduct, you were notified of administrative separation processing on 2 December 2013 and acknowledged your rights. On 13 December 2013, you were discharged for your misconduct with a General characterization of service. In May 2017, the Board of Veterans Appeals granted you service connection for several disability conditions including acquired psychiatric disorder. The Board carefully considered your arguments that you deserve an upgrade to your characterization of service, removal of the misconduct and reduction in rank imposed by non­judicial punishment, change to your reentry code, and change to your narrative reason for separation to disability. You argue that you were suffering from mental health conditions while on active duty and punished based on false allegations by a senior non-commissioned officer. Unfortunately, the Board disagreed with your rationale for relief. First, the Board determined the preponderance of the evidence supports a finding that you committed the offenses that formed the basis for your administrative separation. The Board relied on your 29 April 2013 counselling and your non-judicial punishment to find that you committed misconduct. While the Board considered your allegations of misconduct by a senior non-commissioned officer and the potential impact that may have had in your case, the Board was not persuaded by your assertions without further substantiation. When balancing your assertions against misconduct in your record that was documented by your chain of command, the Board concluded that the evidence supports a finding that you committed the misconduct. Second, based on their finding that you committed misconduct, the Board concluded you were properly processed for administrative separation for misconduct and, therefore, did not qualify for disability processing. Disability regulations direct misconduct processing to supersede disability processing. Third, the Board was not convinced that you were unfit for continued naval service at the time of your discharge from the Marine Corps despite your disability conditions. There was no evidence your medical providers felt the need to refer you to a medical board or the Disability Evaluation System. Further, the Board found no evidence you were unable to perform the duties of your office, grade, rank or rating based on any of your disability conditions. So, even if your misconduct did not prevent you from disability processing, the Board found the preponderance of the evidence did not support a finding that you were unfit for continued naval service at the time of your discharge. The Board considered your Board of Veterans Appeals decision but determined it was not probative on the issue of unfitness since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. Fourth, after applying liberal consideration in your case, the Board determined that your characterization of service, reduction in rate, and reentry code remains appropriate. The Board concluded that you were already provided sufficient clemency when your command suspended your non-judicial punishment forfeitures, part of your restriction and extra duties, and did not impose non-judicial punishment for forwarding the explicit picture. Additionally, the fact you received a General discharge despite committing multiple serious offenses that qualified for an Other than Honorable characterization of service, also convinced the Board no additional clemency was merited. When considered in total, the Board felt no additional clemency was warranted despite liberally considering your case. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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, 10/28/2019