DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6972-19 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 application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 2 March 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, as well as applicable statutes, regulations, and policies. You enlisted in the Marine Corps and began a period of active duty on 29 December 1981. On 5 April 1983, you received nonjudicial punishment (NJP) for resisting apprehension by Military Police (MP) and assaulting a MP by striking him in the jaw with your fist. You were awarded forfeiture of pay and reduction in rank, which was suspended for six months. On 9 November 1983, you were counseled for disregarding military regulations and authority, poor attitude, and substandard performance. You were advised you were being retained, advised that failure to take corrective action could result in administrative separation and judicial proceedings. You refused to sign the counseling entry. On 4 November 1983, you received a second NJP for possession of marijuana and awarded forfeiture of pay, restriction, and extra duties. On 23 February 1984, you were convicted by general court-martial (GEN) for violating Article 128 (assault) of the Uniform Code of Military Justice (UCMJ). You were sentenced to forfeiture of pay, confinement with hard labor, reduction in rank to E-1, and a bad-conduct discharge (BCD). On 26 July 1984, you went on appellate leave. On 12 October 1984, the Navy-Marine Corps Court of Military Review affirmed the findings and sentence of your GCM. Subsequently, the U.S. Court of Military Appeals denied your petition for grant of review and your request for clemency was denied. On 22 May 1985, you were discharged with a BCD. You request the Board upgrade your discharge, however, you did not specify the characterization of service you desire. You assert: “I served 3 years, 4 months, 22 days of dedicated service. I would like to think my exemplary service outweighs one lapse in judgment.” Additionally, you claim it has been 34 years since your discharge and you would like to be eligible for a VA loan. In support of your petition, you attached your clemency request statement dated 26 April 1984. You claim it was self-defense not an assault, and the two other Marines involved were found not guilty or had the charges dropped. The Board was sympathetic to your desire to change your characterization of service, but the Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of fairness or clemency. In your case, the Board determined no clemency is warranted. The Board in its review discerned no probable material error or injustice in the discharge. Further, there is no provision of law or in Navy regulations that allows for upgrading the characterization of service due solely to the passage of time. 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, 4/2/2020