Docket No: 5903-19 
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 for Correction of Naval Records, sitting in executive session, considered your application on 25 September 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, and 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 issue(s) 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 service on 22 August 1984. On 31 December 1986, you received non-judicial punishment (NJP) for breach of peace.  On the same day, you were counseled regarding your misconduct and notified further deficiencies in your behavior could result in the initiation of administrative separation proceedings.  On 28 August 1987, you were convicted at a summary court martial (SCM) for failure to obey a lawful command, and assault.  On 26 October 1988, you were convicted by civil authorities for driving under the influence (DUI), with a blood alcohol of 0.10 or higher, being an unlicensed driver, storage of opened container, and failure to obey a written promise to appear.   On 4 November 1988, you were counseled regarding your civil conviction and elected not to make a statement.  On 2 March 1990, you received NJP for failure to obey a lawful order.  On 19 March 1990, your NJP dated 2 March 1990 was disallowed, and your charges were dismissed.  On 11 July 1990, you were convicted at a special court martial (SPCM).  Although the Board lacked your entire service record book (SRB) it appears from the SRB entries before the Board that you were sentenced to a bad conduct discharge (BCD).  On 13 September 1990, you received your third NJP for unauthorized absence (UA).  The record shows that on 29 May 1992, you were discharged with a BCD, as a result of a court martial conviction.    
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and contention of inadequate counsel for your SPCM.  You contend your commander retaliated against you subsequent to your successful attempt at overturning your NJP.  You state that you would like to obtain a VA loan. With regard to your desire to obtain a VA loan, there is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits. The Department of Veterans Affairs (DVA) determines eligibility for post-service benefits, not BCNR.  You should contact the nearest office of DVA concerning your right to apply for benefits.  The Board noted offenses such as your alcohol related civil conviction was not the result of command retaliation.  The Board also noted that there is no evidence in your record, and you submitted none, to support your contention of your commanding officer’s retaliation and inadequate legal counsel.  Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith.  The Board concluded that the severity of your misconduct outweighed your current desire to upgrade your discharge.   
 
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 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,