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NAVY | BCNR | CY2006 | 00681-06
Original file (00681-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
                                                                                          Docket No:681-06
                                                                                          11 July 2007

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 July 2007. 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, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by Headquarters Marine Corps dated 20 April, 6 June, 21 June, 27 June, and 2 July 2007, copies of which are attached.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection the Board substantially concurred with the comments contained in the advisory opinions. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously 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,

W. DEAN PFEIFFER
Executive Director
        
Enclosures
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
                                             WASHINGTON, DC 20350-3000
                  
                                    IN REPLY REFER TO:
                                                                                                    1070
                                                                                                    JAM3
                                                                                                   APR 2 0 2007

 MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj: APPLICATION FOR CORRECTION THE CASE OF ___
          _____    USMC



Ref:     (a) SECNAVINST 5420.193
1.       You requested we provide an advisory opinion on
 ~        “Applicant”) application to upgrade his discharge from under other than honorable conditions to an honorable discharge, and to change his reenlistment code from RE-4 to an RE-i.
2.       Opinion . We recommend the Board deny relief. Applicant fails to provide substantial evidence of probable material error or injustice in support of his application.
3.       Background

a.       On 26 September 2000, Applicant received a formal counseling because of an inappropriate relationship with a woman not his wife.
b.       On 20 February 2001, Applicant was attached to the Marine Corps Recruiting Station (MCRS), Baltimore, Maryland, 4th Marine Corps District, New Cumberland, Pennsylvania. While attached to MCRS, Baltimore, Applicant received nonjudicial punishment (NJP) for an inappropriate relationship with a female officer candidate, along with adulterous relationship with someone other than his wife.
c.       On 28 January 2002, Applicant received a formal counseling, as he engaged in domestic violence with his wife.
d.       On 26 April 2002, Applicant was sent to an administrative discharge board which recommended Applicant be discharged with an under other than honorable conditions characterization of service due to a pattern of misconduct.
 Subj:    APPLICATION FOR CORRECTION THE CASE OF SERGEANT
 USMC
e.       Applicant claims that his wife lied about the abuse that took place, and therefore states he should have never received a formal counseling which resulted in his discharge. Applicant now requests that his discharge be changed from an under other than honorable conditions to an honorable discharge, along with the upgrade of his reenlistment code from a RE-4 to an RE-l on his DD 214.
4.       Analysis

a.       First, we note that the Board should reject the application because it is untimely. In accordance with the reference, an application for correction of a record must be filed within three years after discovery of the alleged error or injustice unless the Board excuses the untimely filing in the interest of justice. The Applicant filed this application on 7 January 2007, over 3 years after his discharge on 19 June 2002. The Applicant offers no justification for this untimely application for relief and he has failed to make any showing that the interests of justice warrant its untimely consideration.
b.       In order to justify correction of a military or naval record, the Applicant bears the burden to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. Applicant has not provided any evidence to support his claim as to why his discharge should be upgraded, and has not met the burden for relief.
c.       Applicant claims that because his wife lied about the domestic violence, he should not have been discharged. Applicant fails to mention that his discharge was not only based upon this domestic violence incident, but also two prior incidents including an NJP and a formal counseling. Applicant’s claims have no merit.
5.       Conclusion . No corrective action is warranted in this case because Applicant fails to demonstrate by substantial evidence that his discharge was in error or that an injustice occurred. Applicant was responsible for his actions over 4 years ago and engaged in misconduct on multiple occasions.




2





Subj:    APPLICATION FOR CORRECTION IN THE CASE
                  USMC

6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.



Heard, Military Law Branch
Judge Advocate Division
By direction of the
Commandant of the Marine Corps



































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