Docket No: 10740-19
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 9 October 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, applicable statutes, regulations, and policies to include the 25 July 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations.   
 
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 were honorably discharged from the U.S. Army on 30 July 1995 at the rank of E-4 as part of a reduction in force.  You enlisted in the Navy on 25 July 1996.  On 28 January 1998 you received non-judicial punishment (NJP) for two separate specifications of unauthorized absence (UA) and for failing to obey a lawful order.  As punishment, you received forfeitures of pay (suspended), reduction in rank to E-2 (suspended), and restriction and extra duties for forty-five days.  You were issued a “Page 13” counseling warning (Page 13) documenting your NJP.  The Page 13 warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation.  On 29 January 1998 you commenced a period of UA that terminated after twenty-eight days on 26 February 1998. 
 
Your command initiated administrative discharge action by reason of misconduct due to a pattern of misconduct.  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 a pattern of misconduct after you waived your right to an administrative separation board.  Ultimately, on 30 March 1998 you were discharged from the Navy with an “other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reentry code.   
 
You requested that your characterization of service be upgraded to Honorable.  The Board carefully weighed all potentially mitigating factors, including your contentions that while you are fully aware of your actions leading to your separation you do not feel they were indicative of your overall service, your overall military record shows honorable service inclusive of several awards and commendations uncharacteristic of this type of behavior or your discharge, you seek an upgrade so that you may continue in government service, and a single lapse in judgment made under the duress of a failing marriage should not mar your entire service.  In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018). However, even in light of the USD Memo, the Board still concluded 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 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,