DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 9753-17               
Ref: Signature Date 

Dear

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 13 March 2019.  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, as well as applicable statutes, regulations, and policies.  

The Board noted that the available records appeared to be incomplete and they did not have access to all of your separations paperwork.  Of the available records, it was noted that you enlisted in the Navy and began a period of active duty on 8 June 1988.  The available records reflected that on and , you received non-judicial punishment (NJP) for breach of peace and assault consummated by battery on two occasions.  The record also reflects a period of unauthorized absence from 27 August 1992 to 24 February 1993.  It appears you submitted a written request for an other than honorable (OTH) characterization of service discharge in order to avoid trial by court-martial.  Prior to submitting this request, you conferred with a qualified military lawyer at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  Your request was granted and your commanding officer was directed to discharge you with an OTH characterization of service. You were discharged. 

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and contentions that your rights were not explained to you, you were never offered a judge advocate or any other representation and you have an honorable discharge, but your OTH discharge is the only discharge that shows up.  The Board concluded these factors were not sufficient to warrant relief in your case because of the seriousness of your misconduct that resulted in your request for discharge.  The Board believed that considerable clemency was extended to you when your request for discharge was approved since, as a result of this action, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor.  The Board further concluded that you received the benefit of your bargain with the Navy when your request for discharge was granted.  

In regard to your contention that your rights were not explained to, regulations require that a Sailor must be advised by military counsel concerning the consequence of requesting a separation in lieu of trial by court-martial.  Since you were discharged by reason of separation in lieu of trial by court-martial, the Board presumed that the foregoing occurred in your case.  Because you requested discharge in lieu of trial, you received the benefit of your bargain when you were discharged and not tried by court-martial.  Additionally, regarding your contention that you have a prior honorable discharge, you may contact the nearest office of the Department of Veterans Affairs if you desire clarification about your eligibility for those benefits.  In view of all of the foregoing, the Board, in its review, discerned no impropriety or inequity in your discharge. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon submission of new matters.  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,