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

Docket No: 6525-18 
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 30 September 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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.

You enlisted in the Navy on 11 April 1994. On 19 June 1997, you received nonjudicial punishment (NJP) for unauthorized absence (UA), missing ship’s movement after declaring your intent to do so, and failing to obey a lawful order. Although the administrative separation documents are not in your record, the Board relied on a presumption of regularity to support the official actions of public officers, and, given your narrative reason for separation and corresponding separation code on your DD Form 214, the Board presumed that you were properly processed and discharged from the Navy for the commission of a serious offense. Additionally, the offenses of missing movement and disobeying a lawful order qualify as serious offenses because a punitive discharge is authorized under the Uniform Code of Military Justice. Ultimately, on 11 July 1997, you were discharged from the Navy with an other than honorable (OTH) characterization of service.

The Board carefully weighed all potentially mitigating factors, including your contentions that you were given an OTH because you missed movement of your submarine due to trying to correct a persistent payroll issue that was leaving your wife and child without pay while you were at sea, that your discharge paperwork was poorly explained, that you had no other issues during your three years of service, and that you want to be able to carry a military ID acknowledging your service and not request any other benefits. The Board, however, found that your contentions and mitigating factors were not sufficient to warrant relief in your case given the overall seriousness of your misconduct. The Board also observed that there is no evidence in the record, and you provided none, to substantiate your payroll issue. However, even assuming that such payroll problem were true, the Board determined that such an issue gave you no legal justification or excuse to miss your ship’s movement. Accordingly, the Board determined that there was no material error or injustice in your discharge, and the Board found that your misconduct merited an OTH discharge.

In regards to your contention that you only had one incident in three years, the Board noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. Moreover, characterization under OTH conditions is generally warranted for misconduct.

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, such as positive or negative post-service conduct, including any arrests or convictions.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, 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 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,