DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 9968-19 
Ref: Signature Date 

Dear : 

This letter is in reference to your reconsideration request of 11 October 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found that 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 21 April 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, relevant portions of your naval record, and applicable statutes, regulations, and policies.
 
You enlisted in the Marine Corps and began a period of active duty on 1 November 1990.  On 10 August 1992, you received non-judicial punishment (NJP) for insubordination.  On 22 September 1992, you received a second NJP for disobeying a lawful order.  On 2 May 1996, you were counseled about sexual harassment and advised that failure to take corrective action may result in administrative separation and judicial proceedings.  On 24 September 1996, you were convicted by special court-martial (SPCM) of three specifications of violating Article 128 (Assault) of the Uniform Code of Military Justice (UCMJ).  

Subsequently, an administrative action to separate you from the naval service was initiated for a pattern of misconduct.  After consulting with counsel you elected to present your case to an administrative discharge board (ADB).  On 24 October 1996, an ADB unanimously recommended separation with an under other than honorable (OTH) characterization of service for a pattern of misconduct.  On 31 October 1996, you were discharged with an OTH characterization of service. 

You request that the Board upgrade your discharge; however, you did not specify the characterization of service you are seeking.  You assert there is an error in your records.  You described the circumstance surrounding your first NJP.  You claim you went to shower, but because you were on crutches due to a foot injury, it took a while.  While you were gone, your bunkmate pulled the headphones out of your radio and blasted the music in the open squad bay.  By the time you got back to my rack the sergeant was there and you got into an argument with him.  You state:  “I didn’t start it but was charged.”  You describe the circumstances surrounding your second NJP.  You state you were in  and a staff noncommissioned officer ordered you to unload your gear and secure.  However, a corporal ordered you to assist unloading another unit’s gear and you responded:  “that’s not what we were told to do.”  You state:  “Long story short, we load thegear and now I’m in trouble again.  Starting almost over again from E-2.” Over the next three years, you were promoted to sergeant and received a good conduct medal.  One day while you were on guard duty, a female sergeant began flirting with you and you kissed. You state:  “because I’m on duty no one wanted to hear my side.” You claim you were found not guilty of all charges at your SPCM, except for conduct unbecoming a Marine.  Lastly, you state:  “I’m dealing with injuries from the Marines and I can’t get help.  I’m just now understanding the system.” 

The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions and concluded these factors were not sufficient to warrant a change to your discharge given your misconduct that resulted in two NJPs and a SPCM.  With respect to your contentions, the Board noted that you were found guilty of three specifications of assault at your SPCM.  

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken again.  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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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,