Docket No: 5156-20
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 for Correction of Naval Records, sitting in executive session, considered your application on 2 December 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 enlisted in the Navy on 29 May 1975.  On 5 September 1977, you arrived at Naval Station Subic Bay due to being placed on international legal hold status by the Philippine Civil Authorities (PCA) for making grave threats and grave oral defamation.  On 6 February 1978, a special court-martial (SPCM) convicted you of two specifications of unauthorized absence (UA) totaling 20 days and 10 hours, and failure to obey a lawful order.  On 28 February 1978, the PCA dismissed your case because you paid restitution to the complainant.  On 14 April 1978, a second SPCM convicted you of four specifications of absence from appointed place of duty and failure to obey a lawful order.  On 5 July 1978, you received non-judicial punishment (NJP) for UA, being disrespectful in language toward a superior petty officer, two specifications of disobeying a lawful order, and possession of another’s military ID.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to frequent involvement with military/civil authorities.  After you waived your rights, your commanding officer (CO) recommended a general under honorable conditions discharge by reason of misconduct due to frequent involvement with military/civil authorities.   

The discharge authority approved this recommendation and directed a general discharge due to misconduct.  On 10 August 1978, you were discharged.  
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge, and contentions that you accepted your discharge as a good faith effort to settle a legal hold status and you were under duress and lacked legal advice.  However, the Board concluded that these factors were not sufficient to warrant relief in your case given your misconduct and involvement with civil authorities. 
 
In regard to your contention that you accepted your discharge as a good faith effort to settle a legal hold status, the Board noted that the record contains documented evidence that is contrary to your contention.  The record shows that after the PCA dismissed your case, you were convicted by a SPCM and received NJP prior to being processed for separation.  Regarding your contentions that you were under duress and lacked proper legal advice, the Board noted that there is no evidence in your record, and you submitted none, to support your contentions.  The Board noted that the record shows that you were notified of, and waived your right to, present your case to an administrative board (ADB).  In doing so, you gave up your first and best opportunity to advocate for retention, assistance, or a more favorable characterization of service. 
 
In reviewing the circumstances of 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).  Accordingly, the Board considered and acknowledged your positive contributions to the Navy, the length of your active duty service to our nation, and your post-discharge achievements.  Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice.  The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 
 
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,