Docket No: 7575-19 
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 you did not file your application 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 28 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. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Marine Corps and began a period of active duty on 12 May 1998.  On 5 October 1999, you received a mental health evaluation for a threat you made during an altercation with another Marine.  You denied suicidal and homicidal ideations.  The medical officer determined you were competent and responsible for your behavior and actions.  You did not receive a diagnosis and you were not admitted as a patient.  On 26 April 2000, you were convicted by summary court-martial (SCM) for violating Article 91 (disrespect toward a non commissioned officer (NCO)) of the Uniform Code of Military Justice (UCMJ).  You were sentenced to forfeiture of pay and restriction.  On 16 August 2000, you received nonjudicial punishment (NJP) for a 26-day unauthorized absence (UA), disobedience, and wrongful use of marijuana.  On 2 November 2000, you were convicted by special court-martial (SPCM) for violating Article 86 (a 27-day UA), Article 92 (failure to obey a lawful order), and Article 134 (breaking restriction) of the UCMJ.  You were sentenced to forfeiture of pay, confinement, and a bad-conduct discharge (BCD).  On 13 February 2004, after appellate review, you were discharged with a BCD.  On 9 April 2009, the Naval Discharge Review Board (NDRB) granted clemency and changed your BCD to under other than honorable (OTH) conditions.  The NDRB determined that, although your approved SPCM sentence was appropriate, clemency in the form of an OTH characterization of service was warranted based on your post-service accomplishments, including completion of an associate’s degree, numerous professional certifications, and non-involvement with civil authorities since your discharge. 
 
You request that the Board upgrade your characterization of service to honorable.  You assert that your discharge is unjust because, although the NDRB found that relief was warranted and clemency should be granted, your characterization of service is still considered punitive.  You claim that “the totality of honorable military service time” was not taken into consideration.  In support of your petition, you provide military medical records that you claim show you were the victim of multiple assaults during the time of your misconduct.  The Board carefully weighed all potentially mitigating factors, such as your record of service and post-service accomplishments, and your contentions, and concluded, however, that these factors were not sufficient to warrant a change to your discharge given your repeated, serious misconduct, which resulted in NJP and two court-martial convictions.  The Board noted that your punitive (BCD) discharge was changed to an OTH characterization of service, which is an administrative—not punitive—characterization.  With respect to your contention that your honorable service was not considered, the Board noted that, although you served almost two years without incident, you committed multiple violations of the UCMJ in a period of approximately six months, from April to November 2000.  With respect to your contention that you were the victim of multiple assaults, your medical records do not support your assertion.  The Board thus concluded that there is no material error or injustice warranting corrective action. 
 
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.