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

Docket No: 0041-19                                   
Ref: Signature Date 

This is in reference to your application of 29 October 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 18 December 2019.  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, and applicable statutes, regulations, and policies.
 
You enlisted in the Navy and began a period of active duty on 13 September 1990.  On 27 May 1993, you received non-judicial punishment (NJP) for a period of unauthorized absence. On 8 November 1993, you were tried by special court-martial (SPCM) of conspiracy to commit an assault and assault.  You pled guilty and were found guilty of both charges.  As punishment, you were awarded confinement, forfeiture of pay and reduction in rank.  Subsequently, you were notified of an administrative action to separate you from the naval service because of misconduct due to commission of a serious offense.  You were advised of your procedural rights, at which time you elected your right to consult with legal counsel.  On 14 December 1993, after consultation, you waived your right to present your case to an administrative discharge board (ADB).  Your commanding officer (CO) recommended that you be administratively discharged from the naval service with an other than honorable (OTH) characterization of service. The discharge authority approved the CO’s recommendation and directed that you be separated with an OTH characterization of service for misconduct due to commission of a serious offense.  On 10 February 1994, you were so discharged. 

The Board carefully weighed all potentially mitigating factors in your case, including your character letters and desire to upgrade your discharge.  The Board considered your contention that you received an OTH discharge for witnessing a fight in another service member’s apartment.  You contend that you were never involved in the fight.  The Board concluded these factors were not sufficient to warrant relief in your case because of the seriousness of your repeated misconduct that resulted in an NJP and SPCM conviction.  The Board noted that during your court-martial you pled guilty to the charges of conspiracy to commit an assault and assault.  You also waived your right to an ADB, and thereby forfeited your best opportunity to advocate for a better characterization of service. In regard to your contention, there is no evidence in the record and you presented none to support your contention.  The Board relied 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.  Under the totality of the circumstances, the Board discerned no probable material error or injustice in the 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, 


1/7/2020