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

Docket No: 7688-18 
Ref: Signature Date

Dear	:

This letter is in reference to your application of 19 March 2018 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.

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, sitting in executive session, considered your application on 17 October 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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.

You enlisted in the Navy and started a period of active duty on 13 February 1996. On 14 October 1997, you were convicted of a Class 1 Misdemeanor in , . Pursuant to your guilty plea, you were convicted of the following criminal offense: “intentionally make an obscene display or exposure of the accused’s person or the private parts thereof, in a public place or place where others were present.” As punishment, you received confinement, were placed on probation for one year, and ordered to pay costs.

On 3 November 1997, you were notified that you were being processed for an administrative discharge for misconduct due to a civilian conviction involving indecent acts. On 6 November 1997, you elected in writing to waive your right to consult with counsel and present your case to an administrative separation board. Ultimately, on 21 November 1997, you were discharged from the Navy with an Other Than Honorable (OTH) characterization of service.

The Board carefully weighed all potentially mitigating factors, including your contentions that the log entry should show you signing in minutes before 0700 which was the time for muster, and at your time of civilian arrest the command claimed it to be between 0800 to 0830. However, the Board found that your contentions and mitigating factors were not sufficient to warrant a discharge upgrade or the granting of any other relief in your case given the overall seriousness of your misconduct. The Board also determined that even though it was not relevant to the discharge upgrade analysis, there is no evidence in the record, and you provided none, to substantiate your log entry issue. Further, the Board noted the record shows you waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.

Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, such as positive or negative post-service conduct, including any arrests or convictions.  However, even utilizing the guidance of the USD Memo, the Board concluded that, given the totality of the circumstances, your request does not merit relief.

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 the submission of new matters, which will require you to complete and submit a new DD Form 149. 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,