Docket No: 5664-20 
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 22 February 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 enlisted in the Navy on 13 June 2001.  You served without incident until 22 March 2004, when you pleaded guilty to a felony charge of possession of a controlled substance and a misdemeanor charge of driving under the influence in a civilian court.  On 29 March 2004, you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) from 9 February 2004 to 24 March 2004.  Next, on 9 April 2004, you received nonjudicial punishment for an assault.  Finally, on 26 May 2004 you received NJP for a period of UA and for failing to obey an order or regulation.  On or about 20 May 2004, you were notified of the initiation of administrative separation processing, and your rights in connection therewith, and you waived your right to an administrative board.  Your commanding officer recommended to the discharge authority that you be separated with an other than honorable (OTH) characterization of service, and on 3 June 2004, you were separated with an OTH characterization of service.  In March 2005, you petitioned the Navy Discharge Review Board (NDRB) seeking to have your characterization of service upgraded.  You contended there that you had been clean and sober for over a year and that you were going to college.  You also expressed regret for your prior actions.  On 9 August 2005, the NDRB denied your petition. 
 
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 desire to upgrade your discharge and contentions that you served under honorable conditions for all but one month of your enlistment.  You also set forth several matters relevant to clemency, including that you have addressed your substance abuse through counseling, that you are an active member of your church, that you graduated from a community college this semester, and that you have been accepted and enrolled into the School of   You also explained that you are happily married, have two children and two stepchildren and you are currently being treated for post-traumatic stress disorder, depression, and anxiety.  You reiterated that you have not used illegal drugs or abused alcohol since 2004, completed an out-patient drug and alcohol treatment program in 2006, and completed five years of civilian probation, without a single infraction.  The Board commended you on your progress.  Based upon its review, however, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your repeated misconduct, as evidenced by your three NJPs and your civilian conviction while on active duty, 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 the 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, 
 
2/24/2021
Executive Director