Docket No: 4432-19 Ref: Signature Date Dear This is in reference to your application of 15 April 2019 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 7 November 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 December 1993. On 21 July 1995, you received non-judicial punishment (NJP) for failure to go to your appointed place of duty, and failure to obey a lawful order. On 29 July 1995, you received NJP for communicating a threat to a Chief Petty Officer. On 5 June 1996, you were counseled about financial responsibility and advised that failure to take corrective action might result in administrative separation or judicial proceedings. On 19 December 1996, you were arrested by civilian authorities for attempted armed robbery, breaking and entering, using a firearm, and conspiracy to commit robbery. You were shot during the commission of the crimes and were paralyzed. You pled guilty to the charges and served two and a half years in prison. Due to your injuries a command investigation was conducted which determined that your injuries were not incurred in the line of duty and were due to your own misconduct. Subsequently, administrative action was initiated to separate you from the naval service by reason of misconduct due to commission of a serious offense. You consulted with counsel, a judge advocate general corps officer (JAG), and elected to waive your rights. Your commanding officer recommended that you receive an under other than honorable (OTH) characterization of service and the separation authority approved your separation from the Navy. On 1 April 1997, you were discharged with an OTH characterization of service, a separation code “GKQ”, (misconduct), narrative reason for separation “commission of a serious offense,” and a reentry (RE) code of RE-4. You request the Board upgrade your discharge to honorable, change the narrative reason to convenience of the government with a corresponding separation code, and to change your RE code to RE-1. Through your attorney, you assert you were discharged in error. You claim your discharge was procedurally defective and unfair. In support of your petition, your attorney provided a brief asserting you were rushed through your administrative separation by the JAG assigned to your case. Additionally, he argued that because there was no administrative discharge board (ADB), “there was never any finding of misconduct” and that your command never “reached out” to offer assistance, but rather there was “just a jump to the conclusion” that you could not complete or attend drill. Therefore, the “command did not have the proper authority” to administratively separate you as you were not provided the opportunity to fix your deficiencies. Finally, your attorney asserted that the events that led to your discharge are no longer relevant, you have lived in a responsible a manner since your arrest, and there is no valid equitable purpose in leaving the discharge in place. In support of your petition, you attached letters of support and cite your post-service accomplishments including being a Mason, coaching Little League, being a father and foster parent, and being active in your church. You also assert that you have had no problems with law enforcement since your release from prison. The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions and concluded these factors were not sufficient to warrant a change to your discharge, narrative reason for separation, separation code, or RE code given your serious misconduct that resulted in your arrest and conviction. With regard to the contention that you were rushed by the JAG, the Board noted that you provided no evidence to support your claim. Regarding your contention that since there was no ADB, there was never a finding of misconduct, the Board noted that you voluntarily elected to waive an ADB. You pled guilty to your misconduct in civilian court. Regarding your contention that you were never provided the opportunity to fix your deficiencies, the Board noted that on 5 June 1996, you were given a written counseling that included information about available resources for assistance. The counseling warned you that misconduct during your current enlistment, occurring before and after the counseling, and subsequent violations of the Uniform Code of Military Justice or conduct resulting in civilian conviction could result in an administrative separation. The Board noted and commends you for your post-service accomplishments; however, there is no provision of law or in Navy regulations that allows for recharacterization of service 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.