DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1712-19 
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
 
A three-member panel of the Board, sitting in executive session, considered your application on 2 April 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 and personal statement, 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 on 15 July 1999. On 6 November 1999, you left your duty station without legal authority and went into an unauthorized absence (UA) status. You remained in a UA status until on or about December 2002. 

Unfortunately, your administrative separation (Adsep) documents are not in your electronic service record.  However, based on the information contained on your Certificate of Release or Discharge from Active Duty (DD-214), you presumably submitted a voluntary written request for an undesirable discharge in lieu of trial by court-martial for your lengthy UA period.  In block 29 of your DD-214 it states “Time Lost” was 6 November 1999 through 30 December 2002, a period lasting approximately 1150 days.  Time Lost describes periods on active duty spent either in a UA status or while serving in military confinement. 

Prior to submitting this voluntary discharge request, you would have conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 30 December 2002, you were separated from the Navy with an other than honorable (OTH) discharge.  The Board noted that on your DD-214, the narrative reason for separation is “OTH in Lieu of Court-Martial,” (OTHLCM) and your separation code is “KFS,” which corresponds to an OTHLCM Adsep. 

The Board carefully weighed all potential and possible mitigating factors, including your sole contention that it has been over 16 years since your discharge.  Unfortunately, the Board determined your mitigating factors and contention were not sufficient to warrant upgrading your discharge or granting any other relief in your case given your voluntary request for an undesirable discharge in lieu of a trial by court-martial and the overall seriousness of your misconduct.  Moreover, the Board observed that there is no provision of federal law or in Navy/Marine Corps regulations that mandates or provides for a discharge to be automatically upgraded after a specified number of years.  TheBoard also noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by a single incident of misconduct may provide the underlying basis for discharge characterization.  Additionally, characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act that constitutes a significant departure from the conduct expected of a sailor.
 
The simple fact remains is that you left the Navy while you were still contractually obligated to serve.  You went into a UA status without any legal justification or excuse, and you made no efforts over the next 37+ months to terminate your UA to bring this matter to a close.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge and concluded that your serious misconduct and disregard for good order and discipline merited your receipt of an OTH discharge. 

The Board also reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including negative post-service conduct, such as any arrests, criminal charges, or any convictions.  Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your discreditable involvement with military authorities, your request does not merit relief.
 
Finally, despite the fact that your Adsep records were not in your service record, the Board relies 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 the Petitioner, the Board presumes that you were properly processed for separation and discharged from the Navy.  In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

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. 

Sincerely,