DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 4241-18/ 592-16 Ref: Signature Date Dear Mr. : This letter is in reference to your reconsideration request dated 8 May 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the 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 15 August 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, and applicable statutes, regulations, and policies. You enlisted in the Navy on 11 December 1990. As part of your pre-enlistment paperwork, you read and signed the Navy’s Drug and Alcohol Abuse Statement of Understanding. On 28 February 1992, you received non-judicial punishment (NJP) for disorderly conduct and destruction of military property. On 17 April 1992, you received NJP for drunk and disorderly conduct, assault, and disobeying a lawful order or regulation. On 21 April 1992, you were notified that you were being processed for administrative discharge for misconduct due to the commission of a serious offense. On 28 April 1992, you consulted with qualified counsel and waived in writing your right to present your case to an administrative separation board. In the interim, on 25 July 1992, you were arrested by civilian authorities and charged with being drunk in public. On 31 July 1992, you received NJP for disorderly conduct and disobeying a lawful order by drinking underage. Ultimately, on 16 September 1992, you were discharged from the Navy with an other than honorable (OTH) characterization of service. The Naval Discharge Review Board concluded in March 2003 that your discharge was proper as issued and that no change was warranted. The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to, that the Navy failed to follow current and former Department of the Navy guidance governing substance abuse issues. However, even under a liberal consideration standard, the Board determined that your contentions and mitigating factors were not sufficient to warrant relief in your case given the overall seriousness of our misconduct. The Board found that at all relevant times were able to determine right from wrong, and that there was nothing in the record to suggest that you were not responsible for your conduct. The Board also relied on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that you were properly processed for separation and discharged from the Navy. Additionally, contrary to your contention that the Navy did not comply with the relevant OPNAVINST instruction and offer you alcohol rehabilitation treatment, on 10 August 1992, you acknowledged in writing on a “Page 13” counseling form that you were being processed for administrative discharge and that you had been diagnosed as being alcohol dependent. However, on the Page 13 form you specifically declined the opportunity to receive a minimum of thirty days of free inpatient alcohol rehabilitation treatment at a VA hospital prior to separation. Lastly, the Board noted the record shows you were notified of and voluntarily waived your procedural rights in writing in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board found that your serious misconduct and disregard for good order and discipline clearly merited your receipt of an OTH discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your serious misconduct, your request does not merit relief. 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, 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, 9/24/2019 Executive Director