DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 

Docket No: 0212-19 Date: Ref Signature 


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 18 December 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, as well as applicable statutes, regulations, and policies. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Navy and began a period of active service on 12 August 1991.  On 3 February 1995, you received a civil conviction for first degree murder, two counts of the use of a firearm in the commission of a felony, and malicious wounding.  On 11 April 1995, you were notified of the initiation of administrative separation proceedings by reason of misconduct-civil conviction, and misconduct-commission of a serious offense.  On 20 April 1995, you elected counsel and on 7 June 1995 waived your procedural rights.  On 12 June 1995, your commanding officer recommended your discharge by reason of misconduct-civil conviction, and misconduct-commission of a serious offense.  On 22 August 1995, the discharge authority approved and directed your discharge with an other than honorable (OTH) characterization of service by reason of misconduct-civil conviction.  You were discharged on 6 September 1995. 

The Board carefully weighed all potentially mitigating factors, such as your request to upgrade your discharge and contention that you were unjustly incarcerated.  Additionally, you state you would like to receive benefits.  The Board noted that there is no evidence in your record, and you submitted a statement and two un-notarized affidavits, to support your contention.  The Board noted you received a civil conviction during your enlistment.  Members of the armed services who are subject to conviction by civil authorities and, if such action is taken, may be discharged.  The Board considers, the seriousness of a single act must be judged on its own merit; it can neither be excused nor extenuated solely on its isolation. The Board concluded that your mitigating factors were not sufficiently supported and your discharge was appropriate based your misconduct.  Finally, there is no requirement or law that grants recharacterization solely on the issue of obtaining health benefits. 

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.