Docket No: 1105-20            
Ref: Signature Date 
 
Dear :  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 2 November 2020.  The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 
 
Your record reflects that you enlisted in the Navy and began a period of active duty on 23 August 1977.  You had a period of unauthorized absence (UA) from 27 to 30 May 1978.  On 6 July 1978, you received nonjudicial punishment (NJP) for wrongful appropriation in violation of Article 121, Uniform Code of Military Justice (UCMJ).  You had a second period of UA from 5 September to 23 October 1978, for which you received NJP on 9 November 1978.  You had a third period of UA from 9 to 13 January 1979, and then were absent from your place of duty for part of the day upon which you returned.  On 17 February 1979, you received NJP for the third time for these two instances of UA in violation of Article 86, UCMJ, in addition to one specification of leaving your appointed place of duty in violation of Article 86, UCMJ, and one specification of dereliction of duty in violation of Article 92, UCMJ.  Finally, you had a period of UA from 20 April 1979 through 18 December 1985, which was terminated upon your apprehension by civil authorities.  By memorandum dated 22 January 1986, you requested an administrative separation under other than honorable (OTH) conditions in lieu of trial by court-martial.  By memorandum dated 6 February 1986, the separation authority approved your request for discharged under OTH conditions, and you were subsequently discharged from the Navy under OTH conditions on 19 February 1986.  The narrative reason for your separation was “separation in lieu of trial by court martial,” and your reentry code was “RE-4.”   
 
You have requested that the Board upgrade the characterization of your service to honorable, or, alternatively, general (under honorable conditions), and that the narrative reason for separation be changed to “Secretarial Authority.”  You cited several significant family-related hardships during the timeframe in question which influenced your conduct at the time and which were not adequately taken into consideration at the time of your discharge from the Navy.  Specifically, your child was born with spina bifida after your enlistment, and you had significant concerns about the child’s survival.  The stress of this situation motivated your first period of UA.  Later, while you were at sea, your wife was raped, and the combined stresses of your child’s health situation and the sexual assault caused her to attempt to take her own life.  You assert that you went UA to provide her with emotional support.  Finally, you assert that there was a recommendation made for a hardship discharge during the period in question, but that the mitigating circumstances were not considered and that you were never offered a hardship discharge.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, the combined stressors created by your child’s medical condition, the sexual assault upon your wife, and her subsequent suicide attempt, and the effect that they would have had upon you; the fact that your UAs were not malicious, but rather were motivated by stressors outside of your control; your assertion that the mitigating factors were not adequately considered at the time of your discharge; the collateral consequences of your OTH discharge upon your Veterans benefits; the character letters you provided in support of your application, reflecting a lifetime of positive support for your family; your diagnosis with cancer; your relative youth at the time of your misconduct; and the passage of time since your discharge.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your multiple instances of serious misconduct, which included some misconduct unrelated to the stressors that you described and multiple UAs culminating in an absence of over six years that was terminated only by apprehension, warranted an OTH discharge and outweighed the potentially mitigating circumstances.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
You are entitled to have the Board reconsider its decision upon 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,