Docket No: 3680-20
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 16 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 21 February 1978.  You received nonjudicial punishment (NJP) on 28 February 1979, for wrongful use of a controlled substance.  Administrative Remarks dated 31 July 1979 reflect your acknowledgment of the receipt of a 2.4 in Professional Performance and a 2.0 in Military Behavior.  On 28 August 1980, you received a second NJP for unauthorized absence and larceny.  On 21 July 1981, you were convicted at Special Court-Martial (SPCM) and were sentenced in part to a bad conduct discharge.  Medical Records from August 1981 indicate that you received a psychiatric evaluation which noted you were arrested in November 1980 for having 81 grams of marijuana in your possession.  You acknowledged that you had abused marijuana, hashish, LSD, Quaaludes, amphetamines on a periodic basis since your enlistment.  The Medical Records also note that you were surprised by your receipt of a Bad Conduct Discharge at the special court martial proceedings.  You record reflects that on 28 October 1981, your accumulated leave had expired and you were placed in a leave without pay status.  You were subsequently discharged from the Navy on 31 December 1985, with a BCD, and a reentry (RE) code of RE-4. 
 
In your application for correction you ask for an upgrade to your BCD, a change to your RE-4 code, a change to your narrative reason for separation, and for the issuance of a new Certificate of Release or Discharge from Active Duty (DD Form 214).  You state that the discharge was unfair at the time and that your discharge is procedurally defective.  You also state that the discharge is unfair now, and that clemency is warranted. 
 
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, your entire record and application, your desire to upgrade your discharge, and your contention that the discharge you received was unjust at the time, and is still unjust.  The Board also took your allegation of procedural defect into consideration.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board reviewed the available information in your record and noted that you were convicted at SPCM proceedings in July 1981, and that you received a mental health evaluation within a month of the conviction.  In light of the timeframe of your final discharge (1985), and in consideration of the presumption of regularity, the Board concluded that your conviction and BCD received appropriate appellate-level review.  The Board determined that you did not provide sufficient information to overcome the SPCM conviction and you failed to establish that clemency is warranted.  The Board determined that you were properly separated on the basis of the conviction and that the bad conduct discharge, RE-4, and narrative reason for separation of “Conviction by Special Court Martial” were appropriately reflected on the DD Form 214 you received upon your 31 December 1985 discharge.  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,