DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00

TJR
Docket No: 2065-06
20 September 2006

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, considered your application on 19 September 2006. 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 Naval Reserve on 20 October 1988 at age 21 and served for eight months without incident. However, during the period from 18 June to 27 July 1989 you were in an unauthorized absence (UA) status on four occasions for 10 days. The record does not reflect if any disciplinary action was taken for these periods of UA.

On 19 February 1990 you were convicted by summary court-martial (SCM) of breach of the peace and assault with a deadly weapon. You were sentenced to a $405 forfeiture of pay, confinement for 30 days, and reduction to paygrade E-1. Shortly thereafter, on 22 February 1990, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense. At that time you waived your right to consult with legal counsel and to present your case to an administrative discharge board (ADB). On 1 March 1990 your commanding officer recommended separation by reason of misconduct due to commission of a serious offense. On 5 March 1990 the discharge authority approved this recommendation and directed an other than honorable discharge by reason of misconduct, and on 27 March 1990 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 assertion that your conviction was based on circumstantial evidence. It also considered your assertion that because of your training, you can still be of service to your country. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of the seriousness of your misconduct. Further, the Board noted that you were given an opportunity to defend yourself, but waived your procedural right to present your case to an ADB. Finally, there is no evidence in the record, and you submitted none, to support your assertion of being convicted by court-martial based solely on circumstantial evidence. 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,

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