Docket No: 1300-20
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 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 November 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, applicable statutes, regulations, and policies to include the 25 July 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations.  
 
You enlisted in the Navy and began a period of active duty on 4 August 1981.  On 5 April 1982 and 11 May 1982, you received non-judicial punishment for failure to obey a lawful order and an unauthorized absence.  On 3 September 1982, you were convicted by special court-martial of assault on two occasions, concealing a dangerous weapon, two periods of unauthorized absence totaling 31 days, communicating a threat, wrongful possession of marijuana onboard  , and wrongfully using, possessing, selling, transferring and introducing marijuana at .  As punishment, you were awarded confinement, forfeiture of pay, and a bad conduct discharge (BCD).   
 
Prior to the adjudication of your BCD, on 13 July 1983, you were convicted by general court-martial of unlawfully carrying a concealed weapon, possession of a dangerous weapon, to wit: a .22 Caliber pistol, and assault by wrongfully shooting another Sailor in the abdomen. 
As punishment, you were awarded confinement, forfeiture of pay, and a bad conduct discharge (BCD).  Subsequently, after the BCD was approved at all levels of review, you were discharged on 21 March 1985. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contentions that the night of the incident that led to your BCD you were protecting yourself; at the court-martial you were found not guilty of everything except for possession of a firearm and firing the firearm; and you were a good Sailor up until the incident.  You further state that since your discharge, you have completed cosmetology school, have been gainfully employed as a barber and hair stylist since 1987, and volunteer your services to those in need.  
 
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.  In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018).  Accordingly, the Board carefully considered your case and acknowledged your post-discharge achievements.  Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice.  The Board concluded that your BCD discharge characterization was issued without error or injustice, and that corrective action is not warranted. 
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time.  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,