Docket No: 5854-20 
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 3 March 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 15 August 1984.  On 14 August 1986, you received non-judicial punishment (NJP) for failure to obey a lawful order, two specifications of dereliction of duty, willfully disobedience of a petty officer, and three specifications of absence from your appointed place of duty.  On 26 January 1987, a summary court-martial (SCM) convicted you of unauthorized absence (UA) totaling 61 days, absence from your appointed place of duty, and wrongful use of marijuana.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense.  After you waived your rights, your commanding officer forwarded your package to the separation authority (SA) recommending your discharge by reason of misconduct due to commission of a serious offense, with and other than honorable (OTH) characterization of service.  The SA approved the recommendation, and on 27 February 1987, you were so discharged.   
 
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 were subjected to extreme prejudice and unfair treatment from a non-commissioned officer and the division chief; the ramifications of receiving an OTH discharge was not explained to you; and you would like your veteran benefits restored.   

The Board noted that there is no evidence in your record, and you submitted none, to support your contentions.  The Board also noted that the record shows that you were notified of and waived your right to present your case to an Administrative Discharge Board.  In doing so, you gave up your first and best opportunity to advocate for retention, assistance, or a more favorable characterization of service.  Lastly, the Board noted that your eligibility for benefits is a matter under the cognizance of the Department of Veteran Affairs (DVA), and you should contact the nearest office of the DVA concerning your right to apply for benefits.  
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 NJP and SCM, 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,