Docket No: 4505-20 
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 4 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, and applicable statutes, regulations, and policies. 
 
You reenlisted in the Navy on 18 October 1962.  On 6 January 1963, civil authorities arrested you of assault with attempt to commit rape.  On 28 February 1963, civil authorities convicted you of exhibiting obscene pictures and assault with intent to commit an unnatural sex act.  You were sentence to confinement in the county jail for 15 months.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to civil conviction.  After you waived your procedural rights, your commanding officer forwarded your package recommending discharge under other than honorable conditions by reason of misconduct due to civilian conviction.  The discharge authority approved this recommendation, and on 18 March 1963, you were discharged. 
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge, contentions that you were young, have lived a long and good life, attend church regularly, and tried to be an upstanding citizen.  The Board also noted your contention that you assaulted another Marine because he spat on you and told the judge you molested his daughter.   
Finally, the Board noted your contention that you were told your discharge would change to honorable after a period of time.  In this regard, the Board concluded that the seriousness of your misconduct in the civil community outweighed your desire to upgrade your discharge.  The Board noted that there is no provision in law or regulations that allows for re-characterization of a discharge automatically, due solely to the passage of time. 
 
In reviewing 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).    However, even in light of the USD Memo, the Board still concluded given the totality of the circumstances, your request does not merit relief. 
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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, 
12/30/2020
Executive Director