DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
              
Docket No: 7746-20
Ref: Signature Date 
 
Dear Petitioner: 
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 28 June 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 that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy and commenced a period of active duty on 26 May 1994.  On 19 July 1995, you received nonjudicial punishment for failing to obey an order.  On 10 April 1996, you received a written warning concerning your July 1995 nonjudicial punishment, for an arrest by civilian authorities for driving under the influence, and for an executive officer inquiry relating to allegations of unauthorized absence and disrespect to a commissioned officer.  On 2 May 1996, you received nonjudicial punishment for unauthorized absence.  On 6 November 1996, you were convicted by a special court-martial for three periods of unauthorized absence, disobeying a general order, stealing property of the Navy, and breaking restriction.  Your sentence included a bad conduct discharge (BCD).  On 7 April 1998, you were discharged with a BCD. 
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  You contend in your petition that there was insufficient evidence for the court-martial to find you guilty of theft.  You explained that the gas mask was not for your personal benefit, that you pleaded guilty only to avoid jail time, and that your alleged crime did not meet the definition of theft under the law.  You also contend that you believe you were being targeted due to your relationship with a married woman. 
 
In review of all of your materials, the Board did not find an injustice in your record warranting relief.  The Board noted that you were, in fact, convicted by a special court-martial for theft as well as for other violations of the uniform code of military justice.  Applying a presumption of regularity to the court-martial proceeding, the Board determined that you were represented by counsel at the court-martial, and that, because you received a bad conduct discharge, you were assigned an appellate counsel after your conviction.  Based on all of the circumstances, the Board determined that it had no basis upon which to revisit the evidence provided at your court-martial, and if it did, you did not provide any evidence to support your contentions.  In addition, you did not provide evidence to support your contention that you were being targeted due to your relationship with a married woman.  In conclusion, given the totality of the circumstances, as well as a review of your overall service record, 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, 

7/8/2021
Executive Director