Docket No 3439-21
 
 
Dear   
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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 you did not file your application in a timely manner, the statute of limitation was waived in accordance the 25 August 2017 guidance from the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 17 June 2021.  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, applicable statutes, regulations, and policies to include the 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations (Wilkie Memo).  
 
A review of your record shows that you entered active duty with the Marine Corps in April 2004.  In 2008, you were imprisoned by  authorities after attempting to import controlled substances into   After your conviction in a court, you were notified of administrative separation processing for drug abuse, commission of a serious offense, and civilian conviction on 30 July 2010.  An administrative separation board found you committed the alleged misconduct on 21 March 2011 and recommended your separation with an Other than Honorable characterization of service.  After your release from prison, you were discharged on 22 March 2019 pursuant to the administrative separation board findings with an Other than Honorable characterization of service. 
 
The Board carefully considered your arguments for an upgrade to your characterization of service based on your post-discharge good character and mental health symptoms that prevent you from working.  You also express regret for your past actions and assert that an upgrade will ease your financial strain.  Unfortunately, the Board disagreed with your rationale for relief. 
 
In reviewing your case, the Board concluded the preponderance of the evidence does not support the relief you seek.  Despite the mitigation arguments you provided, the Board determined that the seriousness of your misconduct, that led to over ten years of confinement, still supports the characterization of service assigned to you upon your discharge.  In the Board’s opinion, clemency was not appropriate in your case since your drug related misconduct in  was severely service discrediting and a significant departure from conduct expected from a Marine.  Had you been tried by court-martial for your offenses, the Board was convinced that you would have received a punitive discharge from the Marine Corps.  Therefore, the Board felt that you already benefited from your assigned Other than Honorable characterization of service and that it should not be upgraded as a matter of clemency or injustice.  While the Board was pleased that you have become a productive citizen since your release from prison, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
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, 
6/18/2021
Deputy Director