DEPARTMENT OF THE NAVY 
Docket No: 3594-19/ 
           1228-10
Ref: Signature Date 


This letter is in reference to your reconsideration request dated 23 March 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Because your application was submitted with new evidence not previously considered, the Board found it in the interest of justice to review your application.  Your current request has been carefully examined by a three-member panel of the Board, sitting in executive session on 14 May 2020.  The names and votes of the members of the panel will be furnished upon request.  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. 

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge.  The Board considered your contention that you had an inadequate lawyer.  Your lawyer would not let your Executive Officer (XO) testify on your behalf.  You further contend that your right to have people testify on your behalf was violated.  Additionally, you assert that the people involved were African American and you were the only Caucasian person. After you were assaulted and threatened with a loaded gun, you defended yourself.  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, which resulted in a special court-martial (SPCM) conviction and subsequent Bad Conduct Discharge.  In view of the forgoing, the Board in its review 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 reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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.