Docket No: 7657-19 
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 6 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, as well as 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 13 October 1998.  On 7 February 1999, you began a period of unauthorized absence (UA) that continued until you surrendered on 11 March 1999.  On 12 April 1999, after consultation with Counsel, you requested a separation in lieu of trial by court-martial (SILT).  Along with your request, you submitted a statement detailing your family’s financial difficulties, expressing your desires to leave Marine Corps in order to pursue your education and make more money to help your family.  You explained that on 6 February 1999, while in training at  , you were granted weekend liberty until 1800 on Sunday, 7 February 1999.  You telephoned your sweetheart who asked if you could come see her and your family and still make it back in time.  You told her it would be pushing it, but you could try and you flew to .  You wrote:  “Once I saw my Mother and my sweetheart standing at the airport I knew I was not going to come back to finish training.” “This is when I called my uncle who in turn had his friend who is a JAG in the Army call me.  He told me I had to come back to clear my name.”  Additionally, your father submitted a letter requesting your discharge because he had recently taken a substantial pay cut and he and your mother were expecting their seventh child.  On 20 April 1999, after a Staff Judge Advocate reviewed your SILT request, your commanding general approved it.  On 29 April 1999, you were discharged with an under other than honorable (OTH) conditions characterization of service, a separation code “KSF1”, a reentry code “RE-4”, and a narrative reason for separation “Conduct triable by court-martial request for discharge for good of the service (In Lieu of Trial by Court-Martial.”  On 10 February 2005, the Naval Discharge Review Board (NDRB) rendered its unanimous decision that there was no impropriety or inequity in the characterization of service and it shall remain OTH.  The NBRD noted your post-service conduct, but determined it did not mitigate your in-service misconduct.  Additionally, NDRB informed you that they had no jurisdiction over your RE code. 
 
You request the Board upgrade your discharge to honorable, change your separation code, and change your RE code.  Additionally, you request the Board make the following corrections to your record:  remove any inference of misconduct or alleged misconduct from your service and separation records replace with inferences of active duty injury and personal hardships; remove and disregard conduct and performance scores of 6 and 7 February 1999, and add and regard accomplishments before and after those dates; increase your rank from private (E-1) to private first class (E-2); add a list of accomplishments in the Remarks section of your DD Form 214, (e.g., successfully completed basic training, obtained a secret security clearance,  , attended SOI, passed every drug test, and volunteered to assist during pre-deployment exercise for conflict.” 
 
You assert the punitive characterization of your service is tantamount to “cruel and unusual” and violates the 5th, 8th, and 14th Amendments of the U. S. Constitution in process (an error) and proportionality (an injustice).  In support of your petition, you attached 258 pages of documents including an extensive brief, a recounting of events from your perspective, service records, the NDRB decision letter, post-service education and employment documents, Supreme Court case citations, and photos.  In your brief you claim that during SOI training you were injured when you were “violently pushed to the ground under the weight of my field gear and weapon by an overzealous training instructor (name unknown, only instructor of obviously  descent) during a disciplinary ‘range run’ and ‘hill climb’ meted out because of belief that we ‘lacked motivation’ during our return from firing range.  Other Marines witnessed the incident and something akin to ‘that was bullshit.’”  You reported to medical with back pain, x-rayed, diagnosed with overuse of muscles, given brief massage therapy, and released back to training the same day.  You developed pain in your feet from compensating for your back injury.  You were granted weekend leave and while still suffering from injuries, but with the intent of returning to complete training, traveled to  to visit your then fiancé (now wife of 19 years) and family.  You realized family was struggling with stressors:  “mother had post-partum depression and parents were divorcing” and your fiancé was “realizing realities of military life (long periods apart and risk of serious injury or death).”  You contacted a  reserve unit, then your command and told them you would “return to  on a specific date after [you] evaluated the hardships and physically recuperated to discuss the possibility of ending [your] period of enlistment early.”  Your recruiter visited your home and told you he thought you were UA.  Upon your return to , you decided to remain in service, but you were denied the option.  You were assigned to separations battalion and enthusiastically completed several work assignments despite further trauma (a fungal infection and loss of toenail due to trauma incurred during basketball game when another Marine stomped on your foot because he learned you were being discharged.  You claim you were not told an OTH would classify you as a “second-class citizen,” act as prima facie evidence for denial of private and government employment, as well as bar you from benefits for service and non-service connected injuries.  You claim you were separated without due process by “less than beyond a reasonable doubt standard used to ADSEP.” 
 
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, separation code, or RE code given your misconduct.  The Board noted you had the assistance of Counsel, acknowledged the effect of an OTH in your SILT requeset, and your SILT request package was found to be legally sufficient.  Additionally, the Board noted although you claim you decided to remain in the service, but were denied the opportunity, in the statements submitted with your SILT request, you and your father indicated your desire to be separated.  Additionally, the Board noted the other requests you made are either not under the purview of the Board, or are not notations ordinarily documented in a service member’s record or on a DD Form 214.  The Board noted your post-service accomplishments; however, there is no provision of law or in Navy regulations that allows for recharacterization 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.