Docket No: 4988-19 
Ref: Signature Date 
 
 
Dear : 
 
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 25 June 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 and began a period of active duty on 9 September 1977.  You subsequently completed this enlistment with an Honorable characterization of service on 7 September 1981 and reenlisted on 8 September 1981.  On 23 October 1986, you were convicted by general court-martial (GCM) of dereliction of duty, two specifications of violation of a general regulation, two specifications of false official statement, wrongful appropriation, attempted fraud against the government, mishandling classified material, obtaining services under false pretenses, breaking restriction, and obstructing justice.  As punishment, you were awarded reduction in rank to E-1, forfeiture of $400.00 pay per month for 12 months, confinement for 12 months, and discharge from the naval service with a bad conduct discharge (BCD).  After review at all levels of review, findings of guilty for attempted fraud against the government and one specification of violation of a general regulation were set aside and the charges were dismissed.  The remaining findings of guilty and the sentence as approved were affirmed; except the forfeitures which were reduced to $400.00 pay per month for ten months.  On 8 September 1988, you were discharged from the naval service with a BCD characterization of service. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contention that you were given clemency in 1988.  The Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of clemency.  Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.”  The Board determined that no clemency is warranted in your case.  In this regard, the Board considered your contention and concluded that there was insufficient evidence to warrant clemency given the severity of your misconduct that resulted in a BCD.  Accordingly, the Board discerned no material error or injustice in your discharge, nor did it find that clemency was warranted. 
 
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.