Docket No. 2764-21

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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 20 May 2021.  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.   
 
A review of your record shows that you entered active duty with the Navy in November 1963 and were assigned to USS Rainer as she participated in Vietnam operations.  However, between April 1965 and May 1966, you were involved in multiple incidents of military and civilian misconduct that resulted in your administrative separation with an Other than Honorable characterization of service.  Non-judicial punishment was imposed on you for unauthorized absence, orders violation, and disorderly conduct including underage drinking.  In addition, you were arrested by civilian authorities for battery, resisting arrest, drunk, speeding, disturbing the peace, and property damage in February 1966.  You were later sentenced to six months confinement in a civilian court on 10 May 1966 after you were found guilty of speeding, hit and run, and passing at an intersection in an incident that involved a three-vehicle accident.  After your confinement, the Navy notified you of administrative separation processing for your civilian conviction and discharged you on 20 July 1966 with an Other than Honorable characterization of service.  This Board denied your previous application for an upgrade to your characterization of service on 14 May 2020. 
 
The Board carefully considered your arguments that you deserve an upgrade to your characterization of service and a change to your narrative reason for separation to disability.  You assert that you suffer from symptoms of Agent Orange exposure.  In addition, you argue that the Navy failed to provide you due process related to your non-judicial punishments.  Finally, you argue that the Navy discharged you despite being aware of your location in a civilian jail.  Unfortunately, the Board disagreed with your rationale for relief. 
 
First, the Board concluded the preponderance of the evidence does not support an upgrade to your characterization of service.  Despite the mitigating evidence you provided, the Board concluded the seriousness of your misconduct leading to your administrative separation for a civilian conviction warrants an Other than Honorable characterization of service.  The two civilian offenses were significant incidents that were extremely service discrediting based on the number and severity of the offenses.  In the Board’s opinion, the seriousness of these offenses are too great to be offset by the mitigation evidence you provided.  Therefore, based on the preponderance of the evidence, the Board determined your assigned characterization of service remains appropriate.   
 
Second, the Board did not find your allegations regarding the lack of due process in your non-judicial punishments persuasive.  Absent evidence that supports your assertions, the Board relied on the presumption of regularity in determining that no error exists with your non-judicial punishments.  The Board relies on a presumption of regularity to support the official actions of Navy personnel and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.  Additionally, the Board considered your arguments regarding the Navy’s decision to discharge you for civilian conviction despite their knowledge of your confinement.  The Board determined the Navy’s decision to administratively discharge you for civilian conviction was supported by evidence that you were convicted by a civilian court.  The fact the Navy was aware of your location at a civilian confinement facility was determined to be irrelevant on the issue of whether your administrative separation for civilian conviction was appropriate.   
 
Third, the Board determined the preponderance of the evidence does not support changing your narrative reason for separation to disability.  The Board found no evidence that you were symptomatic for any of the claimed disability conditions at the time of your discharge or that the symptoms prevented you from performing the duties of your office, grade, rank or rating.  More importantly, the Board determined you were ineligible for disability processing since you were discharged for misconduct that resulted in an Other than Honorable characterization of service.  Disability regulations dictate that misconduct processing supersedes disability processing. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
Regarding your request for the names of the board members from your last application, the members were . 
 
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, 
5/21/2021
Deputy Director