Docket No. 8425-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER , USMC, Ref: (a) 10 U.S.C. §1552 (b) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments (2) Case Summary 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a request to upgrade his under other than honorable conditions (OTH) discharge. Enclosures (1) and (2) apply. 2. The Board, consisting of, reviewed Petitioner's allegations of error and injustice on 21 August 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of his naval service records, and applicable statutes, regulations, policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. The Petitioner initially enlisted in the Marine Corps Reserve (USMCR) on 23 April 1984. Petitioner received an honorable discharge on 10 October 1984 upon the completion of his required active service and initial recruit training. Following the completion of his initial recruit training, Petitioner was assigned to theunit located in d. Petitioner served in the USMCR without incident and was a satisfactory participant for over four years until late 1988. Petitioner first failed to attend regular scheduled drills in October 1988. In December 1988, Petitioner received a “Page 11” counseling warning (Page 11) for unsatisfactory participation in the USMCR due to unexcused absences from regular scheduled drills. By March 1989, Petitioner had accumulated no less than twenty-two (22) unexcused absences. Petitioner had also been reduced in rank to the lowest enlisted paygrade (E-1), and Petitioner made his intentions clear that he did not intend to make up his missed drills to regain satisfactory participation status. e. Ultimately, the Petitioner was administratively separated from the USMCR by reason of unsatisfactory participation in the ready reserve. On 20 October 1989 Petitioner was discharged from the USMCR with an OTH characterization of service and assigned a reentry code of RE-4. Petitioner’s final conduct trait average was 3.92. Marine Corps regulations in place at the time of Petitioner’s discharge required a minimum trait average of 4.0 in conduct to qualify for a fully honorable characterization of service. f. In the fall of 1988, Petitioner’s wife left him and his newborn daughter. As a new single parent, the Petitioner explained to his unit that he could not attend drills because of his employment that required weekend working hours. On his BCNR application, the Petitioner contended that he felt he had no choice but to miss drills as his employer would not allow him to miss work, and that he only missed drills out of the necessity to meet the basic needs for his family to survive. He argued that prior to his missing drill weekends to support his family, he had no prior disciplinary actions and never received a mark lower than 4.0 in proficiency and conduct, and also received a Meritorious Mast. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request merits relief, given the totality of his circumstances. Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose of the Under Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, to include, but not limited to: positive or negative post-conviction conduct, acceptance of responsibility, remorse, or atonement for misconduct, the length of time since misconduct, the severity of the misconduct, whether misconduct may have been youthful indiscretion, character references/letters of recommendation, meritorious service in government or other endeavors, and/or job history. In this regard, the Board noted that Petitioner’s characterization was unjust given the lack of any other derogatory matters in Petitioner’s record, the Petitioner’s final proficiency/conduct average despite the missed drills, and the Petitioner’s overall meritorious service without the missed drills. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under an OTH characterization. Accordingly, the Board granted the specific relief as requested by Petitioner, namely to upgrade his discharge. The Board concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the discharge characterization should change to “general (under honorable conditions)” (GEN). Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board noted the Petitioner’s overall active duty trait average in conduct did not meet the Marine Corps minimum of a 4.0 for a fully honorable characterization. The Board also noted that an honorable discharge is appropriate only if the Marine’s service is otherwise so meritorious that any other characterization of service would be clearly inappropriate. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record and that a general (under honorable conditions) characterization was appropriate. Additionally, the Board determined that, in fairness to those Marines who serve honorably and without incident, Marines should receive no higher discharge characterization than is due. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate and no higher. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry/reenlistment code be changed to “RE-1J.” That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty or other equivalent discharge record utilized for USMCR personnel. That Petitioner be issued a new General (Under Honorable Conditions) Discharge certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 28 August 2019. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.