DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1445-19 Ref: Signature Date This 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 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 26 March 2020. 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, as well as applicable statutes, regulations, and policies. You enlisted in the Navy on 22 February 1999. On 21 October 1999, you went to non-judicial punishment (NJP) for drunk and disorderly conduct. On 3 November 1999, you received a written “Page 13” counseling warning (Page 13) documenting your NJP. The Page 13 counseling sheet warned you that any further deficiencies in performance and/or conduct could result in processing for administrative separation (Adsep). On 22 March 2000, you went to NJP for unauthorized absence (UA) and failure to obey a lawful order or regulation. On 23 March 2000, you received a written Page 13 warning documenting your NJP containing similar performance, conduct, and Adsep warnings as your previous Page 13. On 26 June 2000, you went to NJP for UA and making a false official statement. On 29 June 2000, you were issued a written military protective order (MPO) directing you to avoid all further contact with a certain adult female. Your command initiated administrative discharge action by reason of misconduct due to a pattern of misconduct. Unfortunately, the Adsep notification and statement of awareness/election of rights documentation is not in your service record. However, the Board relied on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Navy for misconduct due to a pattern of misconduct after you waived your right to an administrative separation board. Ultimately, on 28 July 2000, you were discharged from the Navy with an Other Than Honorable (OTH) characterization of service and assigned an “RE-4” reentry code. The Board noted the absence of mitigating factors in your case and determined that the information available was insufficient to warrant granting relief given the overall seriousness of your misconduct and disregard for good order and discipline on active duty. Further, the Board observed that you did not proffer any contentions or arguments supporting your upgrade petition as a basis upon which to grant relief. The Board also noted the record shows you were notified of and 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. Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Lastly, the Board determined that significant negative aspects of your conduct or performance outweighed any positive aspects of your overall military record in your brief 17+ months of service and concluded that characterization under OTH conditions is generally warranted for misconduct. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and the Board found that your pattern of misconduct merited your receipt of an OTH discharge. 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. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your pattern of discreditable involvement with military authorities, 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, 4/17/2020