Docket No: 9793-19
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 2 October 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, and applicable statutes, regulations and policies.   
 
You enlisted in the Marine Corps on 1 October 1963.  On 8 February 1964, you received non-judicial punishment (NJP) for unauthorized absence (UA).  On 19 October 1964, pursuant to your guilty plea, you were convicted at a Special Court-Martial (SPCM) of UA lasting 30 days.  You received as punishment forfeitures of pay and a reduction in rank to the lowest enlisted paygrade (E-1).   
 
On 18 May 1965, you received to NJP for insubordinate conduct towards a non-commissioned officer.  On 15 November 1965, pursuant to your guilty plea, you were convicted at a SPCM of UA lasting 108 days.  You received as punishment six months of confinement, forfeitures of pay for six months, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD).  However, on 8 December 1965, the Convening Authority disapproved your BCD and any confinement and forfeitures in excess of four months. 
 
On 25 April 1966, you received NJP for failing to obey a lawful order.  On 5 May 1966, you received NJP again for failing to obey a lawful order.  On 25 August 1966, pursuant to your guilty pleas, you were convicted at a third SPCM for UA lasting 82 days and for breaking restriction.  You received as punishment six months of confinement, forfeitures of pay for six months, and a discharge from the Marine Corps with a BCD.  On 28 November 1966, you waived your right to request restoration to duty and instead requested execution of your punitive discharge.  Following the completion of appellate review in your case, your BCD was ordered executed and on 16 January 1967, you were discharged from the Marine Corps with a BCD. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) that you are seeking an upgrade to your discharge to obtain burial benefits from the Department of Veterans Affairs (DVA) so you can be buried next to your late son, (b) your transgressions were not willful but rather the unfortunate consequences of intervening acts, (c) your judgment was clouded by both your circumstances and youth which shows your actions were not intentional, and (d) your misconduct was minor and did not meet the definition of willful and persistent misconduct.   
 
The Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you may have experienced and their possible adverse impact on your service.  However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case given the overall seriousness of your pattern of misconduct.  The Board initially noted that following your completion of initial recruit training, your misconduct spanned virtually your entire enlistment and was per se willful and persistent.  The Board also observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average during your enlistment was 2.63 in conduct.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your cumulative misconduct was not minor in nature and that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time.  The Board believed that, even though flawless service is not required for an honorable discharge, in this case a punitive discharge was appropriate given that you received NJP four times and were convicted three separate times at SPCMs.   
 
Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating DVA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board found that your misconduct was indeed willful and persistent, demonstrated disregard for good order and discipline, and thereby merited your receipt of a BCD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board unanimously concluded that, despite your contentions and a compelling reason to obtain DVA burial benefits, this is not a case warranting clemency.  You were properly convicted three times at SPCMs of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD from the third SPCM.   
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo 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 USD Memo 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,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo 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.  The Board additionally carefully considered your post-service conduct, however, even in light of the USD Memo and reviewing the record holistically, the Board still concluded that, given the totality of the circumstances, your request does not merit relief.  
 
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. 
                                                                             
Sincerely,