Docket No: 3062-20            
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 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 30 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). 
 
You enlisted in the Navy and began a period of active duty on 15 April 2003.  On 7 October 2009, you received nonjudicial punishment (NJP) for conspiracy, failure to obey a lawful order, and assault consummated by battery.  Your final evaluation reflects an Individual Trait Average of 1.86, and notes that you were not recommended for advancement or retention.  Your service record is incomplete and does not contain all of the information pertaining to your administrative separation from the Navy.  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.  Based in your Certificate of Discharge or Release from Active Duty (DD Form 214), on 6 January 2010, you were separated from the Navy on the basis of Misconduct due to Commission of a Serious Offense, and received a general characterization of service and a reentry (RE) code of RE-4.   

Following your discharge, you petitioned the Naval Discharge Review Board (NDRB) for an upgrade to your characterization of service.  On 14 June 2012, NDRB notified you that it found the discharge was proper as issued. 
 
In your application to the Board, you ask that your general discharge be upgraded to an honorable characterization of service.  You assert that you appeared before an administrative separation board, and were informed that your discharge would be suspended pending no further misconduct.  You state that the Captain of the USS , however, overturned the board’s decision and you were transferred to the Transient Personnel Unit in .  You provide a personal statement in support of your request in which you contend that while you were onboard the USS , you got locked inside a storeroom with a female Culinary Specialist Third Class.  Once released from the storeroom, you took full responsibility for the incident.  You went to a board and were processed out.  While being processed at the Personnel Support Detachment office, you attempted to get a lawyer and to contact legal, but it was too late.   
 
The Board in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that you took full responsibility for a situation which was another sailor’s idea and that your administrative separation board recommended that your separation be suspended for six months pending no further misconduct.  The Board noted that as your available record does not contain your complete administrative separation package, the administrative separation board proceedings and your Commanding Officer’s subsequent recommendation for discharge cannot be reviewed in full.  Nonetheless, the Board noted that your general (under honorable conditions) characterization of service is not an adverse characterization of service.  The Board determined that even in consideration of your personal statement about the circumstances of your discharge, you did not provide enough evidence to overcome the presumption of regularity that your general discharge was properly issued after an appropriate administrative process for separation.  The Board concluded that your general characterization of service was properly issued on the basis of your in-service misconduct, that you appear to have been given the opportunity to appear before an administrative separation board, and that an upgrade to an honorable characterization of service is not warranted.    
 
The Board also 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, your desire to upgrade your discharge, and your contention that since your discharge, you have been employed at the  Veterans Affairs Medical Center as a purchasing agent.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant 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,