Docket No: 11716-19 
Ref: Signature Date 
 
 
Dear : 
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 December 2020.  The names and votes of the panel members 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 the 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, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 
 
You enlisted in the Navy and began a period of active duty on 2 September 1992.  On 8 March 1995, you received non-judicial punishment (NJP) for an unauthorized absence totaling three days and disobeying a lawful order.  On 27 February 1996, you were convicted by summary court-martial (SCM) of an unauthorized absence totaling 52 days and missing ship’s movement.     
 
On 13 March 1996, you were notified that you were being recommended for administrative discharge from the naval service because of misconduct due to a pattern of misconduct.  You were advised of, and waived, your procedural rights, including your right to consult with and be represented by military counsel, and your right to present your case to an administrative discharge board (ADB).  Prior to your commanding officer’s (CO) recommendation, you received your second NJP for disobeying a lawful order.  Your CO recommended administrative discharge from the naval service with an other than honorable (OTH) characterization of service.  The separation authority approved the recommendation and directed that you be separated from the naval service with an OTH characterization of service.  On 17 April 1996, you were so discharged. 
 
You requested an Honorable discharge.  You contend you requested leave to be present at your son’s birth, but the officer would not sign your leave request.  You state your wife became sick with a kidney infection after the birth of your son.  You further state she was active duty in the Air Force and did not have anyone to care for her or your newborn son during this time.  You also contend that given the unforeseen issues related to the birth of your son, you would have been granted “FMLA” leave through the Red Cross shortly after, if not the day your son was born and you would not have felt it necessary to be “AWOL.”  You also state you were at your wife’s home of record during the entire period of your absence and did not exceed the leave days that you had earned.  Finally, you contend your legal counsel did not inform the SCM of your wife’s medical issues and had counsel done so, you believe your characterization of service would be different. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge, your post-service accomplishments, and that you have been a productive member of society since your discharge.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your two NJPs and SCM, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
Additionally, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.  Your allegations, unsupported in the record or by submission of documentation failed to overcome that presumption. 
 
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,