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NAVY | BCNR | CY2007 | 00065-07
Original file (00065-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
        
                  CRS
                                                                                          Docket No: 000 65-07
                                                                                          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 opinion furnished by Headquarters Marine Corps dated 2 April 2007, a copy of which is attached, and your rebuttal.
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 opinion. 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

 Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
                                             WASHINGTON, DC 20350-3000
                           IN REPLY REFER TO:
                                                                                  1070 JAM7
                                                                                           APR 02 2007


MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 Subj:    APPLICATION FOR CORRECTION IN THE CASE OF XXX - XX USMC
Ref:     (a) SECNAVINST 5420.193
1. You requested we provide an advisory opinion on Lance Corporal Martin’s (hereinafter “Applicant”) application, docket #00065-07, to upgrade his discharge, and reenlistment code.
2. Opinion . We recommend that Applicant’s request for relief be denied. Our analysis follows.
3. Background

a.       On 18 July 1980, Applicant enlisted in the Marine Corps as a drilling Reservist. On 21 January 1981, Applicant switched from a Reserve status, to an Active Duty Marine.
b.       On 26 April 1983, the Commanding Officer, 3d Truck Battalion, 3d Marine Division, Marine Corps Air-Ground Combat Center, 29 Palms California, imposed nonjudicial punishment (NJP) upon Applicant for unauthorized absence (UA), in violation of Article 86, Uniform Code of Military Justice (UCMJ). Applicant received forfeiture $352.00 pay per month period of two months, restriction for 30 days, and extra duty for 30 days. Applicant’s appeal was denied on 9 May 1983.
c.       On 5 November 1985, the Commanding Officer, Marine
 Barracks, U. S. Naval Activities, FPO New York imposed NJP upon
Applicant for failure to go to appointed place of duty, in
violation of Article 86, UCMJ. Applicant was reduced to Lance
Corporal (pay grade E-3), and received forfeiture of $150.00 for
2 months. The forfeiture of $150.00 pay per month for period of
2 months was suspended for 6 months. Applicant did not appeal.
d. On 28 December 1986, the Applicant entered into an
unauthorized absence status, and remained absent until he was
apprehended on or about 26 August 1993.
 Subj:    APPLICANT FOR CORRECTION IN THE CASE OF USMC
e.       On 28 September 1993, Applicant requested a Separation In Lieu of Trial (SILT) which led to him being separated with an under other than honorable conditions characterization of service.
f.       On 2 October 2004, Applicant submitted a package to BCNR requesting his RE code be changed. This request was denied on 29 January 2004.
g.       Applicant now requests that his discharge be upgraded to a general discharge and that his RE-4 reenlistment code be changed. Applicant claims that the hardship of repeated miscarriages that his wife experienced, and pressure from his Company Commander, led him to enter an unauthorized absence status.
4.       Analysis

a.       The Board should reject the application because it is untimely. Per the reference, an application for correction of a record must be filed within three years after discovery of alleged error or injustice, unless the Board excuses the untimely filing in the interest of justice. Applicant filed his application on 8 December 2006, 13 years after his discharge. Moreover, Applicant fails to provide any reason to excuse his untimely application.
b.       Applicant argues that his meritorious performance, before the hardship that he alleges caused his unauthorized absence, should be grounds to upgrade his discharge. Based on the documentary evidence, Applicant received 4 NJPs and 5 page 11 counseling entries before the hardship, thus his claims have no merit.
c.       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. The Applicant has provided no evidence whatsoever in support of his application, other then the bare assertion that the discharge was unjust. Given Applicant’s record of misconduct, his characterization of service and reenlistment code are appropriate.



2









Subj:    APPLICANT FOR CORRECTION IN THE CASE OF USMC
5.       Conclusion . No corrective action is warranted in this case because Applicant fails to demonstrate by substantial evidence that an error or an injustice occurred.
6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.





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

































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