DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 0227-18 

Dear :

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, 
the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
   
Although you did not file your application in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on the merits.  A three-member panel of the Board, sitting in executive session, considered your application on 28 March 2019.  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, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

You reenlisted in the Navy on 11 January 1995 after continuous honorable service from 15 October 1990 to 10 January 1995.  On 5 September 1996, you submitted a written request for discharge for the good of the 
service to avoid trial by court-martial for assaulting a chief petty officer, disobeying an order, being disrespectful in language, disorderly conduct, and throwing a roll of duct tape, which hit a Sailor in the mouth.  Prior to submitting this request, you were given an opportunity to confer 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. Your request was granted, and your commanding officer (CO) was directed to discharge you with an other than honorable (OTH) characterization of service. As a result of this action, you were spared the stigma of a court-martial conviction, as well as the potential penalties of such a punitive discharge. On 16 October 1996, you were discharged.
 
The Board, in review of your application, carefully weighed all potentially mitigating factors, your desire to upgrade your discharge, and your contention that your discharge was inequitable because it was based on a single, isolated incident in 96 months of service. The Board also considered your contention that the alleged assault occurred when you were being subdued after being kicked in the genital area by the female sailor.  You further contend you were trying to defend yourself when you were grabbed by the chief petty officer and you pushed him off of you.  Additionally, the Board considered your contention that you were treated unfairly during judicial review of the incident and threatened with court-martial if you did not “accept the OTH”, and because of your wife and two small daughters, you accepted in order to avoid any risk of repercussions.  Lastly, the Board considered your post-service record and specifically noted your contention that you have worked for over 20 years at the same company, have not been in trouble, and have successfully raised your daughters.  The Board noted you did not submit any evidence other than your DD Form 149, and the available evidence was insufficient in supporting your contentions or to warrant a change to your characterization of service. The Board discerned no impropriety or inequity in your discharge. 

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 matters. New matters are those not previously presented to or 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, 


6/24/2019