Docket No: 42-19 
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. 
 
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 7 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 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 on 17 February 1976.  On 22 October 1976, you received non-judicial punishment (NJP) for unauthorized absence (UA) totaling six days and missing ship’s movement.  On 8 July 1977, you were convicted by special court-martial (SPCM) of UA totaling 67 days.  On 24 May 78, civil authorities convicted you of aggravated assault and possession of speed.  You were sentenced to 18 months confinement.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to a civil conviction.  You elected to consult with legal counsel and subsequently requested an administrative discharge board (ADB).  The ADB found that you committed misconduct due to a civil conviction and recommended that you be separated with an other than honorable (OTH) characterization of service. 
The discharge authority concurred with the ADB and directed an OTH discharge by reason of misconduct.  On 12 March 1979, you were discharged. 
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and your contentions that you were young and got into a fight, you should have been tried by a military court not a civilian court, and it has been 40 years since your discharge.  In this regard, the Board concluded that the seriousness of your misconduct and civil conviction outweighs your desire to upgrade your discharge. 
 
In regard to your contention that you were young and got into a fight, the Board noted that the evidence of record did not show that you were not responsible for your conduct or that you should not be held accountable for your actions. 
 
In regard to your contention that you should have been tried by a military court not a civilian court, the Board noted that the record contains documented evidence that on 24 May 1978, civil authorities convicted you of aggravated assault and possession of speed.  As a result, you were sentenced to 18 months confinement.  As a member of the military, you are subject to the jurisdiction of both civil and military authorities.  In your case, you could have been prosecuted by both the State of and the Navy. However, the State of , in its discretion, prosecuted you, while the Navy, in its discretion, processed you for administrative separation.  
 
In regard to your contention that it has been 40 years since your discharge, the Board noted that there is no provision in law or regulations that allows for automatic re-characterization of a discharge due solely to the passage of time. 
 
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.