Docket No: 4108-20 
Ref: Signature Date 
 

Dear  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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 7 April 2021.  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 entered a period of active duty on 10 June 1997.  On 17 April 1998 you received nonjudicial punishment (NJP) for Article 123, uttering a falsely made check with the intent to deceive in the amount of $200.  On 9 September 1998 you received a second NJP for Article 86, unauthorized absence (UA) from   Between 4 September 1999 and 30 May 2000 you were counseled three times for UA, and for substantiated spouse abuse and child neglect.  On 12 September 2000 charges were referred against you at a Special Court-Martial for Article 81, conspiracy to steal and forge a signature; Art 112a, wrongful marijuana use; Art 121, theft of a personal check; Art 130, unlawful entry of a room to steal a personal check; and UA.  On 9 May 2001 after consulting with counsel you requested to be separated in lieu of trial by court-martial.  On 31 May 2001 you were discharged with an Other Than Honorable characterization of service. 
 
In your application you contend your legal counsel compelled you to incriminate yourself in violation of your due process rights.  You state you were told the only option you had to not receive a dishonorable discharge was to request separation in lieu of trial by court-martial.  You further state you would have been found innocent had you gone to trial, your ex-wife was found guilty of violating Articles 81, 121, and 130, and that your THC ng/ml level was too low to have felt the effects of marijuana, implying you would have been acquitted had you gone to trial. 
 
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 contentions noted above, desire to upgrade your discharge, and post-service accomplishments.  Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct outweighed these mitigating factors.  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, 
5/4/2021
Executive Director