Docket No. 10876-19              
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 7 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy and began a period of active duty on 28 December 1979.  On 11 June 1980, you received non-judicial punishment (NJP) for an unauthorized absence totaling 20 days.  On 28 May 1985, you were convicted by special court-martial (SPCM) of an unauthorized absence totaling 1571 days.  As punishment, you were awarded confinement, forfeiture of pay and a bad conduct discharge (BCD).  After the BCD was approved at all levels of review, you were discharged on 17 March 1986. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contention that you were told by your lawyer that if you stayed out of trouble in your civilian life, in six months your discharge would be change to honorable.  The Board also considered your contentions that you were young and immature; you are a true patriot to your country; you believe that a shameful mistake you made should not hang over your head as it does today; and that you have been married for 32 years, have raised four children and you have been a self-employed landscaper for most of your work career.  You also noted that your civilian record will show that you have been an outstanding law abiding citizen. 
 
The Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of clemency.  Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.”  The Board concluded that no clemency is warranted in your case.  In this regard, the Board considered your youth and immaturity, however, determined that there was insufficient evidence to warrant clemency given the severity of your misconduct that resulted in a BCD.  The Board, in its review, discerned no impropriety or inequity in the discharge. 
 
In regard to your contention that you were told your discharge would be changed to honorable after six months from your discharge, there is no evidence in the record and you presented none to support this contention.  Additionally, be advised there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time. 
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time.  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,