DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
              
Docket No: 4377-21 
Ref: Signature Date 
               
Dear Petitioner: 
 
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 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 25 August 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, and 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 7 May 1971.  On 27 May 1971 and 14 June 1971, you received non-judicial punishment (NJP) for unauthorized absence on two occasions totaling three days.  On 20 August 1971, you were notified that you were being recommended for administrative discharge from the Marine Corps because of procurement of a fraudulent enlistment through the deliberate concealment of a civilian conviction on 17 April 1969 for the crime of child molestation, which occurred prior to your enlistment in the Marine Corps.  You were advised of, and waived, your procedural rights, to include, your right to consult with and be represented by military counsel, and your right to present your case to an administrative discharge board (ADB).  Your commanding officer (CO) then forwarded your administrative separation package to the separation authority (SA) recommending administrative discharge from the Marine Corps with an other than honorable (OTH) characterization of service.  The SA approved the CO’s recommendation and directed your OTH discharge from the Marine Corps by reason of misconduct – fraudulent enlistment.  On 12 November 1971, you were so discharged. 
 
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, your desire to upgrade your discharge character of service, change your reenlistment code and reinstate your veterans’ benefits.  The Board considered your contention that there are various errors on your Certificate of Release or Discharge from Active Duty (DD Form 214). 
 
The Board noted you did not submit any documentation or advocacy letters in support of your application to be considered for clemency consideration.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by two NJPs and your failure to disclose your prior civilian conviction prior to enlistment in the Marine Corps, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
About your contention concerning errors to your DD Form 214, the Board noted you did not provide any evidence to support your contention that your DD Form 214 contains errors.  In regard to your concern concerning “veterans’ benefits,” be advised that whether or not you are eligible for benefits is a matter under the cognizance of the Department of Veterans Affairs (VA).  If you have been denied benefits, you should appeal that denial under procedures established by the VA.   
 
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, 
09/13/2021
Executive Director