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

Docket No. 289-19
Ref: Signature Date 

Dear

This is in reference to your application of 19 November 2018 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 30 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 by you and your attorney in support thereof, relevant portions of your naval record, and 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 service on 9 July 1986.  On 26 November 1986, you reported for duty on board the .  On 31 March 1988, you received non-judicial punishment (NJP) for dereliction in the performance of your duty, and for wrongfully possessing false military identification (ID).  On the same day, your command issued you a “Page 13” counseling warning on a standard NAVPERS 1070/613 Administrative Remarks form (Page 13).  The Page 13 warning documented your deficiencies in performance and conduct and contained the following warning: You are advised that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative discharge.  All deficiencies and/or misconduct previously cited during your current enlistment, both prior to and subsequent to the date of this action, will be considered.  Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in an administrative separation under other than honorable conditions. 

This counseling/warning is made to afford you an opportunity to undertake the recommended corrective action.  Any failure to adhere to the guidelines cited above, which will be reflected in your future performance and/or conduct, will make you eligible for administrative separation action.
 
On 31 August 1988, you went to NJP for willful disobedience of a Chief Petty Officer.  On 27 January 1989 you went to NJP for disrespect toward a superior Petty Officer.  On 13 April 1989, you went to NJP for unauthorized absence, three specifications of insubordinate conduct toward a Petty Officer, and for damaging U.S. military property.  At each NJP, you were found to have committed the misconduct and you did not appeal any of your punishments.
 
On 14 April 1989, you were notified that you were being dual-processed for an administrative discharge for misconduct due to a pattern of misconduct, and misconduct due to the commission of a serious offense.  You elected in writing to waive your rights to consult with counsel and to request an administrative separation board.  On 15 April 1989, your CO recommended to Navy Personnel Command (NPC) that you be separated with an other than honorable (OTH) characterization of service.  On 19 April 1989, NPC approved and directed separation.  On 2 May 1989, you were discharged from the Navy with an OTH characterization of service. 

The Board carefully weighed all potentially mitigating factors in your case, such as the contentions your attorney outlined and detailed in his supporting brief that included, but were not limited to:  (a) the administrative separation (Adsep) message sent to NPC recommending your separation mischaracterized and falsified important information regarding the reasons you were recommended for separation and NPC approved the separation based only on this information, (b) you were discharged from the Navy before NPC received your enlisted performance record and the separation documents supporting the discharge, (c) your discharge was in violation of MILPERSMAN 1910-140 because you were discharged without receiving any formal written warning or counseling from leadership regarding the behavior for which you were ultimately discharged, (d) you were not given the opportunity to consult with qualified legal counsel prior to electing to waive all your rights and could not give a knowing and voluntary waiver due to the circumstances surrounding the signing of the waiver, (e) the signature of the Commanding Officer (CO) on the notice of board procedure proposed action and your signature on the Page 13 warning appear to be forged, (f) the characterization of service and narrative for discharge listed on your DD Form 214 are invalid because the form does not cite a valid separation authority, (g)  based on the entire record and the information in your file your characterization of service was wholly inappropriate and without justification due to the absence of any factors that could warrant an OTH discharge, (h) a qualified judge advocate did not review the separation materials, and (i) the CO did not follow the rules and regulations and violated Department of Defense rules and regulations that were prejudicial to your rights.  However, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your OTH discharge or granting any other requested relief in your case. 

First, you state that you were discharged without receiving any formal written counseling that is required to separate a service member for a pattern of misconduct.  However, on 31 March 1988, your record indicates that you received a Page 13 written counseling sheet that identified your shortcomings and warned of the consequences of future misconduct.  You also argue that you did not commit serious military offenses.  MILPERSMAN Section 1910-142 states that service members may be separated based on commission of a serious military or civilian offense when the offense would warrant a punitive discharge, based on the Manual for Courts-Martial Maximum Punishment Chart, for the same or closely related offense.  Every offense you were found guilty of at your four (4) NJPs, with the exception of dereliction of duty and UA, could warrant a punitive discharge at a court-martial and thus are classified as serious military offenses. 

Regarding any arguments about due process violations, forged signatures, procedural irregularities, and not following rules and regulations, the Board relies on a presumption of regularity to support the official actions of public officers and, 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.  You have not provided any credible and convincing of evidence to overcome the presumption of regularity and for that reason, the arguments you proffer are not persuasive.
 
You also allege that you were denied the right to consult with counsel prior to waiving your Adsep rights and thus could not give a knowing and voluntary waiver.  The Board observed that the record indicates that you elected on the Adsep Statement of Awareness (SOA) form that, having been afforded an opportunity to consult with counsel, you did not desire to consult with counsel.  There is absolutely no evidence in the record, and you provided none, to either rebut the presumption of regularity, or to demonstrate that you were coerced or misled into waiving any or all of your rights.  If you elected to consult with counsel, your command would have been obligated to arrange for the routine consultation.  You waived that right.  Additionally, the SOA form you personally signed was a standard USN form that could not be altered and was also witnessed by a YN2 from your command.
 
Lastly, even assuming arguendo that a portion of the Adsep message to NPC was inartfully drafted, you were unable to demonstrate to the Board how you were prejudiced by the error.  In other words, you could not demonstrate that, but for any potential errors with the descriptions of your offenses as drafted, that there was a reasonable probability that your Adsep and characterization would have been different.  You had four (4) separate NJPs covering a total of 9 separate offenses.  Your command could have processed you for Adsep after your second NJP, however, your command gave you extra chances.  You went to NJP three more times within 13­months. Even if there was no mention of an assault on the CO’s message to NPC and it was described simply as willful disobedience in paragraph 5A, the Board concluded that the separation and characterization of service (OTH) would have been the same.  Accordingly, the Board determined that the quality of your service did not meeting the standard of acceptable conduct and performance, and that significant negative aspects of your conduct and performance of duty outweighed any positive aspects of your service record.  The Board further found that your OTH discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Finally, the Board concluded that your Adsep was legally and factually sufficient, and was in compliance with all Navy directives and policy at the time of your discharge. 

Additionally, the Board 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.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your pattern of discreditable involvement with military authorities, your request does not merit relief. 

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,