Docket No:  11281-19 
Ref: Signature date 


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 31 March 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 and began a period of active duty on 7 July 1976. On 19 May 1977, you received nonjudicial punishment (NJP) for unauthorized absence.  On 29 June 1977, you received NJP for possession and use of marijuana. On 19 July 1977, you received NJP for assault, theft, and absence from your appointed place of duty.  On 16 August 1977, you received NJP for absence from your appointed place of duty, possession of marijuana, and wrongful appropriation of government property.  Subsequently, administrative discharge action was initiated by reason of frequent involvement with military authorities.  That same day, you waived both your right to consult with counsel and your right to a hearing before an administrative board. On 23 August 1977, your Commanding Officer (CO) recommended that you be discharged with an other than honorable (OTH) characterization of service. The separation authority concurred with your CO’s recommendation, and on 4 October 1977, you received an OTH discharge. 


The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and your assertion that you did not receive an administrative board, which was a violation of relevant instructions and due process. In addition, the Board considered your assertions that your rights were never explained to you, the CO told you how to fill out the paperwork, and your waiver of rights was not knowing or voluntary.  Finally, the Board considered your assertions that an administrative board would have provided you with the best opportunity to combat the allegations, and an other than honorable discharge was excessive in light of the minor nature of charges. 

The Board concluded these factors and assertions were not sufficient to warrant a change to your discharge given your misconduct, which resulted in four NJPs.  The Board noted that you had not only the opportunity, but also the right, to consult an attorney.  However, you declined to do so.  In addition, the Board noted your rights were fully explained in the letter of notification, and you presented no evidence that the CO told you how to fill out the paperwork.  Finally, the Board concluded you waived your procedural rights, including appearing at an administrative board, in connection with your administrative separation.  By doing so, you gave up your first, and best, opportunity to advocate for retention or a more favorable characterization of service. The Board discerned no probable material error or injustice in your discharge that warrants an upgrade in the characterization of your service or a change to your narrative reason for separation, separation code, or re-entry code. 

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.