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

Docket No: 5666-19
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 6 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 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 19 June 1991. On 29 May 1992, you received nonjudicial punishment (NJP) for disorderly conduct which was of a nature to bring discredit upon the Armed Forces.  Your record reflects Administrative Remarks from 23 November 1993, which indicated you were in an unauthorized absence (UA) status for about 1 hour and 20 minutes.  On 18 March 1994, you appeared before a special court-martial and pursuant to your pleas, were found guilty of UA, wrongfully communicate, provoking words, and assault.  The court sentenced you to confinement for 90 days, forfeiture of $500 pay per month for four months and reduction in rank.  On 7 June 1995, Navy and Marine Corps Review Activity indicated that you had been served by Certified Mail on 28 March 1995, but no petition for review had been received.  Therefore, appellate review was considered complete.

In your petition to the Board, you ask for an upgrade to your bad conduct discharge.  You state the incident which led to your court-martial proceedings was clear self-defense and your attorney refused to contest the allegations against you.  You noted that your superiors were your character witnesses, you did not instigate the incident, and it was you against five individuals.

The Board, in its review of your entire application, carefully weighed all potentially mitigating factors, including your contention that your attorney would not contest the allegations against you and that you did not receive proper counsel.  The Board also noted that you indicate that you were defending yourself rather than engaging in a wrongful assault.  The Board reviewed your available records and noted that you appear to have entered mixed pleas to the various charges referred against you, which the Board found indicative of a decision between you and your attorney regarding the prudency of pleading to certain charges while pleading not guilty to others.  The Board noted that your entry of mixed pleas is inconsistent with the notion that your attorney refused to contest the allegations against you.  Furthermore, the Board found that your allegations of improper or ineffective assistance of counsel are not supported by evidence or information.  The Board found that you appear to have been appropriately represented by counsel, made a strategic decision to enter mixed pleas, and were awarded a bad conduct discharge after being found guilty of violating Articles 86, 134, 117, and 128 of the Uniform Code of Military Justice.  The Board further noted that your special court-martial proceedings were reviewed at the appellate level.  Based on the information reflected in your record and in the absence of evidence submitted by you to support your contentions of error and injustice, the Board concluded that your bad conduct discharge was properly issued.

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,