Docket No: 1179-20 
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 you did not file your application 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 4 September 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, and applicable statutes, regulations, and policies. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined 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 duty on 6 July 1987.  On 14 January 1988, you received nonjudicial punishment (NJP) for disobeying a lawful order.  You were awarded restriction, extra duties, and forfeiture of pay; the forfeiture was suspended for six months.  Additionally, you were advised that failure to take corrective action could result in disciplinary action and in administrative separation processing.  On 10 August 1988, you began a period of unauthorized absence (UA) that continued until you surrendered on 11 August 1988.  On 17 August 1988, you received a second NJP for UA and were awarded forfeiture of pay, restriction, and extra duties.  You were UA again from 14 to 15 September 1988.  On 12 October 1988, you received a third NJP for UA and missing ship’s movement.  You were awarded forfeiture of pay, restriction, and extra duties.  On 14 December 1988, you tested positive for Methamphetamines.  A drug and alcohol abuse report indicated that you admitted to using “crystal meth” at the home of another Sailor and you claimed it was the first time you used drugs.  You were determined not to be drug dependent, and not amenable to counseling and treatment.  On 17 January 1989, administrative discharge action was initiated by reason of misconduct due to a pattern of misconduct and drug abuse.  After being afforded all of your procedural rights, you opted not to consult with counsel and elected to waive all rights, except to obtain copies of documents supporting the basis for your separation; and your case was forwarded to the separation authority for review.  On 30 January 1989, your commanding officer forwarded your package to the separation authority.  The separation authority approved your separation from the Navy.  While pending administrative separation, you were UA again from 23 to 27 January 1989.  On 1 February 1989, you received a fourth NJP for UA and were awarded confinement with bread and water for three days.  On 6 February 1989, you were discharged with an other than honorable (OTH) characterization of service. 
 
You request an upgrade to your discharge to general (under honorable conditions).  You assert that due to the sexual harassment you received from your chain of command, you suffered severe stress, fear, and anxiety that resulted in your misconduct while aboard the   .  In support of your petition, you attached a personal statement.  You wrote that your father, uncle and brother all served in military and you looked forward to doing the same.  You further assert that a week after being assigned to the    , there was a dispute as to where you would work, and your Lieutenant (LT) had you assigned to work for him.  You claim he took you into his quarters, cornered you, and made verbal threats that you felt were sexual harassment.  From then on, you were constantly harassed and sent to Mast.  You state, “The XO would see I did nothing wrong and dismissed the charges.  I told the Chaplain who told me to tell the XO and the CAPT.  Nothing was done.  The LT must have found out I reported him because the harassment got worse.  One day I was walking down the passageway and the LT shoved a paper at me and told me I was going to get an OTH and if I didn’t sign, I would get a dishonorable discharge.”  You admit you committed some misconduct that deserved minor punishment, but believe you deserve a general discharge.  Since your discharge, you have had successful career in fire and EMS service, been married for 25 years, and belong to civic and charitable organizations.  Additionally, you attached a statement from your father who recounted his interaction with your command and that you were not offered any legal assistance before you were separated.  Lastly, you attached a letter from the Department of Veterans Administration (VA) dated 2 January 2019, that provides in part that Congress recently passed a law that allows the VA to provide mental and behavioral health care to certain former service members with OTH discharges, including those who were on active duty for more than 100 days and served in a combat role, or those that experienced sexual harassment or sexual assault while serving. 
 
The Board carefully weighed all potentially mitigating factors, such as your record of service and contentions and concluded these factors were not sufficient to warrant a change to your discharge given your misconduct that resulted in four NJPs, three of which occurred after you had been warned about the potential for administrative separation.  The Board noted that you provided no evidence to support your contentions.  Absent of such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith.  With respect to your father’s assertion that you were not offered legal assistance, the Board noted that you were notified, in writing, of your right to counsel and you opted not to exercise that right.  Lastly, the Board noted your post-service accomplishments; however, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time. 
 
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 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,