Docket No: 1211-21 
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 relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 19 March 2021.  The names and votes of the panel members 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 the 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, applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 
 
You enlisted in the Marine Corps and began a period of active duty on 23 May 2007.  On 17 July 2008, you were counseled for underage drinking while stationed in Okinawa, Japan.  From a period beginning on 13 August 2008 to 19 November 2008, you were not recommended for promotion due to the following offenses: failure to qualify with rifle and pending legal action.  On 11 December 2008, you entered a guilty plea for larceny.  On 23 December 2008, you were convicted by summary court-martial (SCM) for larceny.  On 4 June 2009, you entered a guilty plea for assault consummated by battery.  On 29 July 2009, you were not recommended for promotion due to pending legal action.  On 16 September 2009, you were convicted by a SCM for assault.  On 5 October 2009, you were counseled for your conviction by SCM and processed for administrative separation.  On 10 December 2009, you were notified of proposed administrative separation by reason of a pattern of misconduct and commission of a serious offense.  You consulted with counsel, waived your right to an administrative separation board, but submitted a statement indicating your desire to stay in service.  On the same date, your commanding officer recommended an under other than honorable (OTH) characterization of service.  On 15 January 2010, your administrative separation proceedings were determined to be sufficient in law and fact.  On 20 January 2010, the discharge approval authority directed an OTH character of service by reason of misconduct due to a commission of a serious offense.  On 11 February 2010, you were so discharged.  At the time of your discharge your conduct average was 3.8.  On 3 February 2012 the Naval Discharge Review Board (NDRB) denied your request for a discharge upgrade.  On 21 July 2014, NDRB upgraded your characterization of service to general (under honorable conditions) based upon your post-service conduct, specifically your employment and academic achievements.            
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, proof of post-service business and academic accomplishments, your requests to upgrade your character of service to honorable, change your narrative reason of separation to secretarial authority, and back pay of 50.5 days of unused leave.  Additionally you contend that your conduct marks were changed and that they meet the threshold for an honorable character of service.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that the seriousness of your misconduct, as evidenced by your SCM for assault, outweighed your desire to upgrade your discharge or change your narrative reason for separation.  In regards to the issue of your back pay for unused leave, you did not include any proof that you were not paid for these days, such as a copy of your last leave and earning statement.  Additionally, there is no indication that your conduct marks were changed.  Your record clearly indicates that your final conduct average was below the 4.0 average required to be considered for an honorable character of service. Accordingly, given the totality of the circumstances, to include a review of all your post-service accomplishments, the Board determined that your request does not merit relief. 
 
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.   
 
Sincerely, 
4/27/2021
Executive Director