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

Docket No: 5192-19               
Ref: Signature date 

This letter 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 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 5 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, 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 would not materially add to its 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 duty on 28 December 1988.  On 3 August 1998, in accordance with your pleas of guilty, you were found guilty at a special court-martial (SPCM) of stealing $14,137.92.  You were awarded confinement for two months, a fine of $3,702 (with four additional months of confinement if the fine was not paid), reduction to pay grade E-1, and to be discharged from the naval service with a bad-conduct discharge (BCD).  You were sent home on appellate leave pending appellate review.  A review by the staff judge advocate, prior to the convening authority taking final action on your sentence, determined that you failed to pay the fine.  However, to expedite the appellate review process, and to save costs of returning you from appellate leave, the fine of $3,702.00 was disapproved.  On appeal, you contended, as you do in this petition to the Board, that your sentence was inappropriately severe.  The U.S. Navy-Marine Corps Court of Criminal Appeals considered your excellent character and extended length of military service, as well as the substantial restitution ($7,000) already made by you at the time of trial.  The Court also took into account “the relatively large sum of money that was stolen and the length of time over which the theft occurred.”  The Court further noted that your possible sentence could have been six months confinement, six months forfeitures of two-thirds pay, reduction to pay grade E-1, and a BCD, and noted that you “received instead a sentence that included a relatively modest amount of confinement.” The Court further noted that the convening authority had disapproved your fine, thereby removing the possibility of any additional confinement.  The Court then determined that “[u]nder these circumstances,” your sentence was “not inappropriately severe.”  On 6 March 2000, at the completion of the appellate process, you were so discharged. 

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and your contention that you took responsibility for your actions, but claimed the Yeoman never took care of your change of entitlements.  The Board also considered your contentions that you thought the pay section would “catch up,” but that they never did, as well as your contention that you were not able to present the evidence you thought would show you were not liable for a mistake.  Finally, the Board considered your contentions that you would have received NJP, but were court-martialed because you did not want to reenlist, and were denied an Achievement Medal because you would not extend at sea.  However, the Board concluded that these factors and assertions were insufficient to warrant a change to your discharge given your misconduct, which resulted in a SPCM conviction by guilty plea.  The Board noted that you were represented by counsel and had an opportunity to present all your contentions at trial.
 
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, 


2/3/2020