Docket No: 5262-19 Ref: Signature Date 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 28 May 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. You enlisted in the Navy on 13 June 1974. Following initial recruit training and “A” school, you you went to non-judicial punishment for two periods of unauthorized absence (UA) lasting 34 and 2 days, respectively. On 14 July 1975 you went UA again and on 13 August 1975 you were declared a deserter. On 9 February 1976, your UA status was terminated by your surrender to federal authorities in. On 2 March 1976, you submitted a voluntary written request for an undesirable discharge for the good of the service to avoid trial by court-martial for your 210-day UA period. Prior to submitting this request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. On 16 March 1976, the Commandant of the granted your request and directed an undesirable discharge for the good of the service. As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Ultimately, on 19 March 1976, you were separated from the Navy with an other than honorable (OTH) discharge. The Board carefully weighed all potential and possible mitigating factors, including your contentions that included, but were not limited to: (a) in early 1975 a senior enlisted sailor began to haze, harass, and ultimately assault you on a routine basis for months, which included body blows, blows to the head, and forcefully shaving your head while you were on duty, (b) after several months of abuse without any relief from the chain of command you made the decision to go UA, (c) after your first UA period the abuse continued and you made the decision to go UA again, (d) you continue to be burdened by your harsh discharge, (e) you request that the board take this opportunity to examine the reasoning behind your UA periods, (f) you have worked hard since your discharge to establish yourself as a valuable member of the community, and a role model for your community and church congregation, and (g) an OTH discharge is too harsh when the totality of the circumstances are evaluated and that you have been improperly stigmatized and harmed by your OTH. However, the Board found that these factors and contentions were not sufficient to warrant relief in your case given your voluntary request for a good of the service discharge in lieu of a trial by court-martial, and the overall seriousness of your misconduct and lack of respect for good order and discipline while on active duty. Additionally, characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act that constitutes a significant departure from the conduct expected of a sailor. The Board also considered your post-service accomplishments, but ultimately concluded that your lengthy UA warranted an OTH characterization. The simple fact remains is that you left the Navy while you were still contractually obligated to serve. You went into a UA status without any legal justification or excuse, and you remained away for 210 days. The Board also noted that there is no convincing evidence in your record to support your contention that you were the victim of hazing, harassment, and/or bullying. The Board observed in your personal statement accompanying your undesirable discharge request you made absolutely no mention about purported hazing or bullying. Instead, on 2 March 1976 you stated: “I went U.A. from the Navy on July 14, 1975. I didn’t do this on impulse. It took a lot of thought and consideration. At the time I went U.A., I had multiple problems. Both at home, and on my ship. On the ship, I would find myself in deep states of mental depression. I found myself not caring about anything. Often I would let my temper go and start fights. On top of this, my mother had become ill to the point of being bed-ridden. I was called home on three separate occasions by the Red Cross to take emergency leave on her account. I am fully aware of the consequences of a BCD and a U.D. as far as I have been told. I know that the Navy has a lot of good things to offer some men. For me, it held nothing. I tried my best, it just didn’t work out. In conclusion, I feel that it is in the best interests of the U.S.N. and myself that I be separated from service by an Undesirable Discharge.” The Board determined that your administrative separation was proper and in compliance with all Navy directives and policies at the time of your discharge. The Board concluded that your discharge request was voluntary on its face, and there is no indication that your due process rights were violated. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and concluded that your serious misconduct merited your receipt of an OTH discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances your request does not merit relief. 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.