DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1033-19 Dear : This letter 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 27 February 2020. 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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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 on 7 June 2016. At all relevant times related to your separation and discharge, you were stationed on board the . On 15 February 2017, you went to non-judicial punishment (NJP) for insubordinate conduct toward a noncommissioned officer and for the failure to obey a lawful order or regulation. On 21 June 2017, you went to NJP for attempted larceny, insubordinate conduct toward a noncommissioned officer, the failure to obey a lawful order or regulation, and for unlawful entry. On your performance evaluation for the period ending 15 July 2017, you were ranked #4 out of four sailors in your summary group, rated “significant problems” with the lowest possible trait average of 1.0 out of a possible 5.0, and not recommended for retention. Your command initiated administrative action to separate you from the naval service by reason of misconduct due to the commission of serious offense. Unfortunately, the administrative separation notification and statement of awareness/election of rights documentation is not in your service record. However, the Board relied on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Navy for misconduct due to the commission of a serious offense and received all the due process to which you were entitled. On your detaching performance evaluation from the for the period ending 17 October 2017, you were again rated “significant problems” with the lowest possible trait average of 1.0 out of a possible 5.0, and not recommended for retention. While your separation was pending, on 14 December 2017 you went to NJP for disrespect toward a superior commissioned officer, and for failing to obey a lawful order or regulation. On 12 March 2018, the portion of suspended punishment from your third NJP was vacated and enforced due to your continuing misconduct. Ultimately, on 17 May 2018, you were discharged from the Navy with an other than honorable (OTH) characterization of service, and assigned an “RE-4” reentry code. The Board carefully weighed all potentially mitigating factors, including your contentions that your background check indicates that you have no criminal record and are not a registered sex offender in the United States, and that you would like to reenlist in the Navy. However, the Board found that your contentions and mitigating factors were insufficient to warrant changing your reentry code, upgrading your discharge, or granting any other relief in your case given the overall seriousness of your misconduct. Accordingly, the Board determined that there was no probable material error or injustice in the 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, 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.