Docket No: 0167-19                       
Ref: Signature date 
 

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. 
 
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  8 January 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 would not materially add to its 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 25 April 1989.  On 31 May 1991, you received non-judicial punishment (NJP) for failure to obey a lawful order and disrespect in language.  On 12 April 1993, you were convicted by special court-martial (SPCM) of attempting to steal, larceny, and 10 specifications of uttering certain checks.  As punishment, you were awarded reduction in rank, confinement, and to be discharged from the naval service with a bad-conduct discharge (BCD).  After the BCD was approved at all levels of review, you were discharged on 23 February 1994.   
 
The Board carefully weighed all potentially mitigating factors in your case, such as your submission of supporting documentation on your behalf and your desire to upgrade your discharge.  The Board considered your contention that your discharge was based on “one isolated incident” during your “four years, nine months, and five days of service,” and that it has been over twenty-four years since your discharge and you are not the same person that you were back then.  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 determined that no clemency is warranted in your case.  In this regard, the Board concluded that there was insufficient evidence to warrant clemency given the severity of your misconduct that resulted in a BCD.  In its review, the Board discerned no material error or injustice in your discharge, nor did it find that clemency was warranted. 
 
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.