DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
           
Docket No: 4605-21           
Ref: Signature Date 
          
Dear Petitioner: 
 
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 27 September 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). 
 
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 enlisted in the Marine Corps and commenced a period of active duty on 25 January 1990.  On 13 July 1990, you received nonjudicial punishment for unauthorized absence, drinking underage on two occasions, and communicating a threat to injure.  On 8 October 1990, you received nonjudicial punishment for disorderly conduct.  The next day, 9 October 1990, you received a formal written counseling relating to your frequent involvement of a discreditable nature and that you were developing a pattern of misconduct.  On 11 February 1992, you were convicted by a summary court-martial for assault by kicking a lance corporal.  On 2 April 1992, you were notified of the initiation of administrative separation processing and your rights in connection therewith.  You waived your right to an administrative board.  Your chain of command recommended that you be discharged with an other than honorable characterization of service.  On 1 June 1992, a Marine judge advocate determined that your discharge process was sufficient in law and fact, and on 10 June 1992, you were discharged with an other than honorable characterization of service.  In 1996, you filed an application with the Naval Discharge Review Board (NDRB).  In your application, you contended that your last charge was only attempted assault, and the other Marine who was involved had more charges, and he received a general characterization of service.  You also stated that you felt like you became what the Marine Corps made him you after your service in Operation Desert Storm.  The NDRB conducted its review of your application on 12 November 1996, and determined that your discharge “properly and equitably reflect[ed] the quality of service rendered.”   
  
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  You contend in your petition that your discharge under other than honorable conditions is an injustice because you should no longer suffer for your youthful indiscretion, which was caused by your youthful rowdy nature and personal problems.  In addition, you state your discharge is an injustice because it has created a burden on your family, and that it should be mitigated by the personal struggles that you faced.  You further state that you believe you deserve a second change because you have long paid for your misdeeds.  In addition, you described how you are a veteran of Operation Desert Storm and Desert Shield, are a third-generation Marine whose father was killed-in-action while serving in Vietnam just a few weeks before your birth, and that you joined the Marines in part to honor your father’s legacy.  Finally, you state that although you were unable to honorably complete your military service, you state that you have rehabilitated yourself in the nearly thirty years since your discharge by growing and caring for your family, advancing your education, and maintaining steady employment.  You provided clemency materials to your petition, including news articles and several character references, as well as excerpts from your military records. 
 
Based upon its review, the Board concluded the potentially mitigating factors that you raised were insufficient to warrant relief.  With respect to your contentions relating to your youthful indiscretion as well as the passage of time, the Board found that the offenses for which you were discharged, and the pattern of misconduct that you developed, were serious, and that your contentions did not outweigh the misconduct that you committed while on active duty.  The Board commended you for your post-service success and acknowledged your positive personal references, and it also acknowledged with deep respect the sacrifice of your father and your commitment to the Marine Corps, but it determined that these factors did not rise to the level of meriting relief.  Given the totality of the circumstances, and in light of your repeated misconduct as evidenced by two nonjudicial punishments, a written warnings, and a summary court-martial conviction, 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, 
9/27/2021
Executive Director