DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

TJR

Docket No: 4042-11/
[12373-09]

22 April 2011

 

This is in reference to your application for correction of your

naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, reconsidered your
application on 20 April 2011. The names and votes of the
members of the panel 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 this Board. Documentary material reconsidered by
the Board consisted of your application, together with all
material submitted in support thereof, your naval record, and

applicable statutes, regulations, and policies.

After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.

Your record reflects that on 14 January 1975, at the age 19, you
enlisted in the Marine Corps. It also reflects that you served
for about six months without disciplinary incident. However,
during the period from 13 June to 24 October 1975, you received
nonjudicial punishment (NJP) on three occasions for wrongful
possession of marijuana, absence from your appointed place of
duty, leaving your post without proper relief, and 13

specifications of failure to sign your restriction papers.

On 29 January 1976 you were counselled regarding your involvement
of a discreditable nature with military authorities and
nonrecommeridation for promotion. About five months later, on 10
June 1976, you received NUP for disobedience, failure to obey a
lawful order, and drinking alcoholic beverages in the barracks.
During the period from 19 July to 29 October 1976, you were
counselled on five more occasions regarding your ineligibility
for promotion due to receiving NUP, nonrecommendation for
promotion, excessive involvement of a discreditable nature with
military authorities, substandard conduct and performance of
duty, and poor personal appearance. On 4 November 1976 you
received NJP for failure to go to your appointed place of duty.
The next day you were counselled because you were suspected of
using: dangerous drugs. At that time you were warned that
possession of drug paraphernalia could result in an
administrative separation.

On 11 January 1977 you received NUP for absence from your
appointed place of duty and two specifications of failure to obey
a lawful order. Shortly thereafter, on 26 April i877, you
received your seventh NJP for absence from your appointed place
of duty. Subsequently, on 28 April 1977, you were notified that
administrative separation action had been initiated and that you
were recommended for a less than honorable characterization of
service by reason of misconduct due to frequent involvement of a
discreditable nature with military authorities. After consulting
with legal counsel you elected to present your case to an
administrative discharge board (ADB). Prior to the convening of
your ADB, you received NUP on 2 May and again on 7 June 1977, for
absence from your appointed place of duty and destruction of
government property valued at $50.

On 8 July 1977 an ADB recommended discharge under honorable
conditions by reason of misconduct due to frequent involvement of
a discreditable nature with military authorities. On 16 August
1977, your commanding officer, in concurrence with the findings
and recommendation of the ADB, also recommended discharge under
honorable conditions by reason of misconduct due to frequent
involvement of a discreditable nature with military authorities.
On 15 September 1977 the Staff Judge Advocate (SJA) reviewed the
facts of your case, determined that the separation procedures
were proper and legal, and recommended to the discharge authority
that the recommendations for a general discharge by reason of
misconduct be approved. On 19 September 1977 the discharge
authority approved the foregoing recommendations and directed
your commanding officer to discharge you under honorable
conditions by reason of misconduct due to frequent involvement of
a discreditable nature with military authorities, and on 7
October 1977, you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to upgrade your discharge and change the
narrative reason for separation to reflect that you were
separated for medical reasons. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge or a change of the narrative reason for
separation because of the seriousness of your repeated and
frequent misconduct which resulted in nine NUJPs, counselling on
several occasions for involvement of a discreditable nature,
nonrecommendation for promotion, substandard performance, and
misconduct that included drug abuse.

The Board further considered your assertion that since your
separation was inappropriately directed by someone that was not
in your chain of command, your discharge should be voided. In
this regard, the Board concluded that the appropriate procedures
were adhered to when processing you for separation. In other
words, your recommendations for discharge were processed via your
chain of command to the SJA, who forwarded the recommendations to
the proper discharge authority.

The Board noted that there is no medical evidence in the record
to support your assertion that you should have been discharged
for medical reasons, and you submitted none, to warrant a change
of your narrative reason for separation. Further, even If you
had been processed for separation for dual reasons (1.e.,
misconduct and medical reasons), regulatory guidelines authorize
separation by reason of misconduct to take precedence over all
other reasons. In this regard, Sailors separated by reason of
misconduct normally receive discharges under other than honorable
conditions. As such, the Board concluded that, with your
extensive record of misconduct, you were fortunate to have
received a general discharge. Finally, the Board concluded that
there was more than sufficient evidence in the record to support
your separation by reason of misconduct, and as such, your
application has been denied.

The Board believes that under current regulations you may be
eligible for veterans’ benefits. However, whether or not you are
eligible for benefits is a matter under the cognizance of the
Department of Veterans Affairs (DVA), and you should contact the
nearest office of the DVA concerning your right to apply for
benefits. If you have been denied benefits, you should appeal
that denial under procedures established by the DVA.
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,

Lo Some

DEAN PFE

 

ements loves Dikkec