DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
JDR
Docket No: 6229-14
10 July 2015
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.
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 for Correction of Naval Records,
sitting in executive session, considered your application on
16 June 2015. 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 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.
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.
You enlisted in the Marine Corps, began a period of active duty
on 5 February 1990, and served without disciplinary incident for
about five years. However, during the period from
15 February 1995 to 24 April 1995, you were formally counseled
and advised of deficiencies in performance and conduct for
exceeding military weight standards, inadequate and substandard
performance of duty, developing a pattern of misconduct due to
frequent involvement with civil and military authorities, and
for having your government operator’s license suspended. On
10 August 1995, you received nonjudicial punishment (NJP) for
failure to go to your appointed place of duty. You were
formally counseled again on 2 October 1995 due to financial
irresponsibility. Although the documentation is not in your
record, it appears that on 2 March 1996, you were arrested by
civil authorities on worthless check offenses and sentenced to
120 days in jail.
On 11 March 1996, you were charged with violating Articles 86,
107, 121, and 123 of the Uniform Code of Military Justice
(UCMJ). As a result of the foregoing charges, you submitted a
written request for an other than honorable discharge to avoid
trial by court-martial. Prior to submitting this request, you
conferred with a qualified military lawyer at which time you
were advised of your rights and warned of the probable adverse
consequences of accepting such a discharge. Subsequently, your
request was granted and the commanding officer was directed to
issue an other than honorable discharge by reason of the good of
the service. As a result of this action, you were spared the
stigma of a court-martial conviction and the potential penalties
of a punitive discharge and confinement at hard labor. On
1 July 1996, you were issued an other than honorable discharged.
The Board, in its review of your entire application and record
(although incomplete), carefully weighed all potentially
mitigating factors, such as your record of service and desire to
upgrade your discharge. The Board also considered your
assertions that you do not deserve to be punished in this way,
that you are having service connected health issues, and that
you are ineligible for care at VA facilities. Nevertheless, the
Board concluded these factors were not sufficient to warrant
relief in your case because of the seriousness of your
misconduct, which resulted in four formal counselings, one NUP,
one civil conviction, and charges of violations of the UCMJ.
With regard to your assertions, the Board noted that you were
advised of your rights and warned of the probable adverse
consequences of a discharge with an other than honorable
characterization of service. Further, the Board believed that
considerable clemency was extended to you when your request for
discharge to avoid trial by court-martial was approved. The
Board concluded that you received the benefit of your bargain
with the Marine Corps when your request for discharge was
granted and you should not be permitted to change it now.
Accordingly, your application has been denied.
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 within one year from the date of the Board’s
decision. New evidence is evidence not previously considered by
the Board prior to making its decision in your case. [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,
ROBERT J. O'NEILL
Executive Director
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