Docket No: 5153-20
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 2 December 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 30 September 1976.  The record shows that you commenced three separate periods of unauthorized absence (UA):  from on or about 
17 September 1977 to 7 November 1977, totaling 42 days; 14 November 1977 to 14 February 1978, totaling 82 days; and 1 May 1978 to 14 December 1978, totaling 223 days.  Unfortunately, your administrative separation documents are not in your service record.  However, the record does contain a court memorandum stating that the separation authority directed your administrative separation with an other than honorable (OTH) characterization of service of in lieu of court-martial.  In this regard, you presumably submitted a voluntary written request for an administrative separation in lieu of trial by court-martial, with an OTH characterization of service.  Prior to submitting this voluntary separation request, you would have conferred with a qualified military lawyer, you would have been advised of your rights, and warned of the probable adverse consequences of accepting such a discharge.  As part of this discharge request, you would have admitted guilt and acknowledged that your characterization of service upon discharge would be other than honorable (OTH).  On 23 February 1979, you were discharged from the naval service with an OTH characterization of service.   
 
The Board carefully weighed all potentially mitigating factors, including your desire to upgrade your discharge.  The Board considered your statement that you had drug and alcohol issues, and you acknowledge that you did miss ship’s movement.  However, you contend that you had honorable service; and when you asked, you were told that your discharge would be automatically upgraded to a general discharge after 10 years of being separated. 
 
Unfortunately, after careful consideration, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service or sufficient evidence to warrant clemency.  The Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary (as is the case at present), will presume that they have properly discharged their official duties.  Additionally, be advised there is no provision of law or in Navy regulations that allows for re-characterization of service due solely to the passage of time. 
 
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.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your three periods UA, 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,