Dear : 
 
This letter is in reference to your reconsideration request, on behalf of your late husband, dated 4 February 2020.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found that 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 4 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 including relevant portions of your naval record, and applicable statutes, regulations and policies. 
 
After careful and conscientious consideration of your late husband’s entire record, the Board determined that there were insufficient matters presented to establish the existence of material error or injustice.  The Board considered your assertion that there was no basis for the discharge characterization set forth in your late husband’s DD Form 214.  Our letters to your late husband of 29 November 2017, 17 June 2014 set forth the Board’s prior decisions.  The Board has previously explained that, in your late husband’s resignation letter, he stated that “[o]ver the past years I have been confronted with the problem of homosexuality.  During the past year I have engaged in one or more acts and have made attempts to solicit participation.”  In your late husband’s case, soliciting sex and indecent assault between superior-subordinate relationships is sufficient event under current standards to warrant an other than honorable characterization of service.  Under the Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo or 20 September 2011 (Correction of military records following repeal of 10 U.S.C. § 654), the Board can grant a request to upgrade a discharge that was based solely on homosexuality when two conditions are met:  (1) the original discharge was based solely on “Don’t Ask, Don’t Tell” or similar policy, and (2) there were no aggravating factors such as misconduct.  In reviewing your late husband’s record and the evidence you provided, the Board determined that aggravating factors existed and concluded the discharge was proper as issued and no change is warranted.  Accordingly, your application has been denied. 
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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,