DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 0662-19 
Ref: Signature Date 
 

Dear : 
 
This is in reference to your application of 3 December 2018 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 that 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 29 January 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 and began a period of active duty on 19 December 1982.  On 7 June 1984, you received non-judicial punishment (NJP) for failure to go at the time prescribed to your appointed place of duty.  On 23 July 1984, you received your second NJP for an unauthorized absence and absence from your appointed place of duty.  Although the specific charge is not in your record, on 12 December 1984, you submitted a written request for separation in lieu of trial (SILT) by court-martial.  Prior to submitting this request, you conferred with a military lawyer at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  Your request was granted and your commanding officer was directed to discharge you with an other than honorable (OTH) characterization of service in lieu of trial by court-martial.  On 20 December 1984, you were so discharged. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contentions that you never had a chance 
to properly appeal the decision to separate you with an OTH discharge.  The Judge Advocate General (JAG) Officer told you that you did not have a choice and that if you took things further you would be facing 20 years in    .  You were unaware that it was illegal to kill a gray fox; you do not feel that killing a gray fox should warrant an OTH discharge when you served honorably.  You were also told by the JAG that your discharge would be upgraded after six months if you stayed out of trouble with the law.  The Board concluded these factors were not sufficient to warrant relief in your case because of your repeated misconduct and subsequent discharge in lieu of trial by court-martial. 
 
The Board noted that the record contains documented evidence, which is contrary to your contention that you never had a chance to properly appeal the decision to separate you with an OTH discharge; you were afforded an opportunity to consult with military legal counsel and elected to submit a request for separation in lieu of trial by court-martial.  In regard to your contention that your JAG told you that you did not have a choice, there is no evidence in the record and you presented none to support your contention.  Additionally, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time.  Under the totality of the circumstances, the Board discerned no probable material error or injustice in the discharge. 
 
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. 
 
Sincerely,