Docket No: 7745-20 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 19 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). The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy on 13 March 2000. On 29 March 2002, you received nonjudicial punishment for two periods of unauthorized absence (UA) from 21 January 2002 to 01 February 2002 and 26-27 February 2002, making false official statements, and obtaining services under false pretenses. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense and homosexual conduct. After you waived your procedural rights, your commanding officer recommended discharge by reason of misconduct with a general, under honorable conditions (GEN), characterization of service. The discharge authority concurred with the recommendation and directed discharge with a GEN characterization of service by reason of misconduct due to commission of a serious offense. On 10 May 2002, you were discharged with a GEN characterization of service. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention you were “unfairly discharged for reasons outside of [your] control” because you were not “able to speak the truth” because of the Don’t Ask Don’t Tell (DADT) policy. Specifically, the Board considered your contention that you were “forced to take a blame just because [you] couldn’t talk about [your] sexuality” and had been diagnosed with HIV and was “already showing major depression and mood swing symptoms which the command did not want to take a look at.” The Board considered your explanation that you were “forced to lie and take the fall” for taking another service member’s personal identity information in order to get a phone installed in your apartment when in fact your service member boyfriend, whom had beaten you after your relationship was discovered because he felt the discovery was your fault, had stolen the individual’s information. The Board further considered your contention that all your lies were the result of trying to hide your sexuality and by discharging you for those lies, the command was truly discharging you due to your homosexuality. Even applying liberal consideration, the Board determined there was insufficient evidence of an error or injustice that warrants an upgrade to your characterization of service. Although notified for administrative processing for homosexual conduct and commission of a serious offense, the Board noted the discharge authority directed your separation by reason of misconduct due to commission of a serious offense and not homosexual conduct. The Board concluded that, even when liberally considering your contention you only lied because of the DADT”s policy regarding homosexuality, your misconduct, which consisted of two UA periods, several false official statements to your superior, and obtaining services under false pretenses, warranted a GEN characterization of service regardless of the contended reasons for the UA or the lies. 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 contention that your misconduct was caused by the DADT policy. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct 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,