DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 872-21 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MEMBER XXX XX Ref: (a) 10 U.S.C. § 1552 (b) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting changes to his discharge characterization, reenlistment code, and narrative reason, separation authority, and separation code. 2. The Board, consisting of Ms. , Mr. , and Ms. , reviewed Petitioner’s allegations of error and injustice on 21 July 2021 and, pursuant to its regulations, determined the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s 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). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to review the application on its merits. c. Petitioner enlisted in the Marine Corps on 22 January 2013. d. On 26 September 2013, Petitioner received an administrative remarks (Page 11) 6105 entry counseling him for insubordinate conduct toward a staff sergeant. On 25 November 2014, he was again formally counseled for insubordinate conduct after lying to his First Sergeant regarding his appointed place of duty on the Birthday Ball working party. e. On 19 February 2015, Petitioner was notified of pending administrative separation action by reason of misconduct due to commission of a serious offense because he was suspected by the Commonwealth of Virginia, of committing rape by having sexual intercourse with a person who was incapacitated. After he consulted counsel, submitted a personal statement, and waived his remaining procedural rights, Petitioner’s commanding officer (CO) recommended Petitioner be separated with an other than honorable (OTH) character of service due to misconduct. After the staff judge advocate (SJA) determined the separation was sufficient in law and fact, the discharge authority directed Petitioner be discharged with an OTH character of service by reason of misconduct due to commission of a serious offense. Petitioner was discharged on 29 May 2015. f. On 30 December 2015, the Commonwealth of approved a jury verdict of “Not Guilty” on all charges against Petitioner. Subsequently, on 8 July 2016, the Court expunged all police and court records from Petitioner’s record, leaving him with no criminal record. g. On 28 April 2017, the Naval Discharge Review Board (NDRB) reviewed Petitioner’s case and changed his characterization to general, under honorable conditions, and his narrative reason to “secretarial authority” with corresponding changes to his separation code and separation authority. h. Petitioner contends the following: (1) He was unjustly separated based on an entirely erroneous allegation of which he was later acquitted by a jury. (2) He did not receive any meaningful due process prior to separation and was specifically not well-served by his appointed counsel regarding waiving his right to an administrative discharge board. (3) A jury determined Petitioner was “not guilty” of all charges, and the Court fully expunged his record of all police and court records related to the allegation. (4) Absent the civilian allegations, the Marine Corps did not have grounds to separate him. NDRB’s reliance on the two retention warnings to justify the discharge is entirely erroneous. (5) His post-service record warrants granting an upgrade to his characterization. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board, noting the CO relied upon supporting documents regarding the civilian charges and the SJA, presumed regularity in the administrative separation process and did not find an error at the time of processing. However, noting the civilian court’s subsequent “not guilty” determination and the court’s 2016 expungement of all documents related to the allegation, the Board determined there is sufficient evidence of an injustice in allowing the characterization of service to remain. The Board, applying liberal consideration and noting Petitioner’s average proficiency and conduct marks of 4.1/4.1, concluded Petitioner’s service warranted an honorable characterization of service. Additionally, in the interest of justice, the Board further determined Petitioner’s reentry code should be changed to “RE-1J” which corresponds to the changes made to his separation reason by the NDRB. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 and discharge certificate changing his characterization of service to “honorable” and reentry code to “RE-1J.” That a copy of this report of proceedings be filed in Petitioner’s naval record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 8/10/2021 Executive Director