Docket No: 6061-19 
           Ref: Signature Date 
          
 
Dear  
 
This letter is in reference to your reconsideration request received on 24 May 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
Because your application was submitted with new contentions and documentation, the Board found it in the interest of justice to review your most recent application.  In this regard, your current request was carefully examined by a three-member panel of the Board, sitting in executive session, on 28 May 2020.  The names and votes of the members of the panel will be furnished upon request.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, available portions of your naval record, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy and began a period of active duty on 2 March 1994.  On 29 August 1995, you received nonjudicial punishment (NJP) for three periods of unauthorized absence (UA), totaling six days and 3.5 hours.  On 9 September 1996, after you admittedly withheld this information from your chain of command, your command became aware of your 26 August 1996 civilian conviction for driving under the influence of alcohol.  On 25 February 1997, you received a second NJP for failure to obey an order by sleeping in the nude with another person in the probe storage hold onboard USS .  Subsequently, on 14 March 1997, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense, civilian conviction, and homosexual conduct.  After consulting counsel, you elected your right to an administrative discharge board (ADB).  Prior to your ADB, you received a third NJP for a one-day UA.  On 12 April 1997, the ADB determined that the preponderance of the evidence supported findings of misconduct for commission of a serious offense, civilian conviction, and homosexual conduct.  The ADB recommended that you be separated from the Navy with an other than honorable (OTH) characterization of service.  Your commanding officer concurred with the ADB’s recommendation.  The discharge authority approved this recommendation and directed that you be discharged by reason of misconduct due to commission of a serious offense with an OTH characterization of service.  On 23 May 1997, you were discharged. 
 
The most recent Board considered your request to upgrade your characterization of service and remove “misconduct” from your narrative reason for separation.  The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered each of your contentions as outlined in your submission.  Specifically, the Board considered your contention that the findings of the ADB relied upon a suspected act of homosexual conduct in determining your discharge and that is “no longer allowed.”  The Board also considered your contention that once the “homosexual conduct” basis is removed, there is no pattern of misconduct.  You contend that to rely upon the 25 February 1997 NJP is an injustice, and once that NJP is “removed,” all that remains is a single civilian conviction and that charge alone “is not enough to show a pattern of misconduct.”  Lastly, the Board considered your contention you were the victim of military sexual trauma (MST) and not a participant in “consensual homosexual conduct.” Specifically, you contend you were so intoxicated you do not recall consensually partaking in any homosexual act and you strongly feel that you were the victim of MST.  The Board also considered the statement provided by your friend which detailed that he was also a victim of MST at the hands of the same individual. 
 
After careful consideration of your contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service or changing your narrative reason for separation.  The Board noted your 25 February 1997 NJP did not treat the misconduct as “homosexual conduct” but rather found you guilty of sleeping naked in the probe storage hold with another person, an act that would have been misconduct regardless of the sex of the other individual.  Additionally, the Board noted you were not processed by reason of misconduct due to pattern of misconduct; you were processed for commission of a serious offense, civilian conviction, and homosexual conduct.  Even removing the homosexual conduct basis, the finding of misconduct by reason of commission of a serious offense and civilian conviction warrants separation with an OTH characterization of service.  Even under the liberal consideration standard, the Board found your misconduct, which resulted in three NJPs and a civilian conviction, warranted an OTH characterization of service. 
 
The Board also carefully considered your contention you were the victim of MST and not a consensual participant in inappropriate and unauthorized nude conduct onboard a naval vessel.  The Board determined additional evidence was required before a determination could be made regarding whether MST mitigated the misconduct for which you received NJP on 25 February 1997.  Even applying liberal consideration and assuming your nakedness in the probe storage hold was MST and not consensual, the Board considered your 29 August 1995 NJP for UA and your 1996 civilian conviction for DUI, without including your NJP subsequent to the alleged MST, and determined this misconduct, on its own, warranted an OTH characterization of service. 
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction.  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, 
 6/30/2020