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 18 June 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 and personal statement, 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 30 April 1969.  On 17 February 1970, you went to non-judicial punishment (NJP) for being incapacitated for duty as a result of previous indulgence of intoxicating liquor.  On 25 May 1970, you went to a Special Court-Martial (SPCM) for unauthorized absence (UA) and for missing movement by design of the USS .  As punishment you were reduced in rank to the lowest enlisted paygrade (E-1), received forfeitures of pay, and served 15 days of confinement before the remainder of confinement was suspended for six months.  On 15 February 1971, you went to NJP for UA by failing to go to your appointed place of duty.  On 28 April 1971, you went to NJP for disobedience of a non-commissioned officer.  On 14 August 1972, you received a written page 11 counseling warning (Page 11) documenting that you would not be recommended for reenlistment because of frequent involvement with military authorities.  On 25 August 1972, you went to NJP for a period of UA lasting nineteen (19) days.  On 18 January 1973, you went to NJP for UA lasting six (6) days.  On 24 January 1973, you received a Page 11 warning documenting your frequent involvement with military authorities and your unsatisfactory performance of duty. 
 
On 21 February 1973, you commenced a period of UA that lasted 231 days and terminated on 11 October 1973.  The very next day, you commenced another long-term UA that lasted 767 days and ended on 18 November 1975.   
 
On 19 December 1975, you submitted a voluntary written request for an undesirable discharge for the good of the service to escape trial by court-martial for your two UA periods totaling 998 days.  Prior to submitting this discharge request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  Ultimately, on 9 January 1976, you were separated from the Marine Corps with an other than honorable (OTH) discharge.  On 5 February 1979, the Naval Discharge Review Board determined that your discharge was proper as issued and that no change was warranted. 
 
The Board carefully weighed all potential and possible mitigating factors, including your contentions that included, but were not limited to:  (a) that you went UA because your mother was sexually assaulted around the end of 1973, (b) drug addiction was the catalyst for your extended absence, (c) you didn’t flee to and served in the  theater of operations, (d) that your son and daughter have suffered because of your young ignorant decisions, (e) you served 3 years and 8 months and the punishment does not fit the crime and is cruel and unusual, and (f) you have a 1987 letter from the U.S. Department of Veterans Affairs (VA) stating your service was honorable.  Unfortunately, the Board determined your mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case given your voluntary request for an undesirable discharge in lieu of a trial by court-martial, and the overall seriousness of your pattern of misconduct.  The Board also noted that in addition to your two long-term UA periods, you also have a pattern of misconduct including five (5) separate NJPs and one SPCM in your record.  Moreover, the Board observed that there is no provision of federal law or in Navy/Marine Corps regulations that mandates or provides for a discharge to be automatically upgraded after a specified number of years.  Additionally, characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine.  The Board also noted that VA eligibility determinations for health care, disability compensation, and other VA-administered benefits are for their internal VA purposes only.  Such VA eligibility determinations and/or discharge classifications are not binding on the Department of the Navy and have absolutely no bearing on previous active duty service discharge characterizations.  Accordingly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  The Board determined that there was no impropriety or inequity in your discharge, and concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of an OTH discharge.  
 
The Board also 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, including negative post-service conduct, such as any arrests, criminal charges, or any convictions.  Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your pattern of discreditable involvement with military authorities, 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,