Docket No: 7529-19 
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, sitting in executive session, considered your application on 9 December 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Marine Corps and began a period of active duty on 10 June 1998.  On 16 September 1999, you were counseled regarding not being in weight standards.  You were advised that failure to take corrective action could result in administrative separation.  On 4 February 2000, you were counseled missing 27 remedial physical training sessions from September to December and not making progress.  On 5 February 2000, you were counseled that you were eligible but not recommended for promotion to CPL.  On 9 June 2000, you received nonjudicial punishment (NJP) for unauthorized absence (UA) and false official statement.  You were awarded forfeiture of pay, restriction, extra duties, and reduction in rank to E-2, which was suspended for six months.  On 12 October 2000, your suspended sentence was vacated.  On 20 October 2000, you received a second NJP for three specifications of UA and underage drinking.  You were awarded, extra duties, reduction in rank to E-1, and forfeiture of pay (which was suspended for six months).  You were again advised that failure to take corrective action could result in administrative separation, and that you were eligible, but not recommended for promotion to E-3.  On 26 October 2000, you were counseled regarding your failure of the physical fitness test (PFT) the same day.  On 8 March 2001, your suspended sentence was vacated.  On 16 April 2001, administrative discharge action was initiated by reason of misconduct.  After being afforded all of your procedural rights, you waived them, and your case was forwarded to the separation authority for review.  Your commanding officer recommended that you receive an under other than honorable (OTH) conditions discharge and the separation authority approved your separation from the Marine Corps.  On 5 May 2001, you were counseled that you were not recommended for reenlistment.  On 18 May 2001, you were discharged with an OTH characterization of service. 
 
You request the Board upgrade your discharge to general (under honorable conditions).  “You assert:  “The evidence of record fails to show that I was discharged due to willful and persistent misconduct.  Any offenses in my record were minor and did not deserve discharge.”  In support of your petition, you attached the Veterans Affairs (VA) decision letter, dated 5 June 2019, informing you that your service from 10 June 1998 until 18 May 2001 is considered honorable for VA purposes.  Your application also indicates that your VA records from  should be considered by the Board, however no other documents related to the claim were received or considered by the Board. 
 
The Board carefully weighed all potentially mitigating factors, such as your record of service and contentions but concluded these factors were not sufficient to warrant a change to your discharge given your misconduct that resulted in two NJP for repeated UA, false official statement, and failing to obey orders.  Additionally, the Board noted you were counseled regarding your deficiencies, and your NJP punishments included partially suspended sentences that were vacated due to your repeated misconduct.  Lastly, the Board noted you were unable to maintain Marine Corps fitness standards.  Please be advised that you were properly discharged with an OTH discharge due to misconduct.  The VA upgraded your discharge status to honorable in order for you to receive VA benefits only, and does not change or upgrade your characterization of service. 
 
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.