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 24 July 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 28 January 1980.  Following your completion of initial recruit training, on 15 May 1980 you reported for duty on board the USS  ) in . 
 
On 3 June 1981, you commenced a period of unauthorized absence (UA) that lasted 20 days.  On 21 July 1981, you commenced a UA period that terminated after 66 days with your arrest by civilian authorities for driving while intoxicated.  On 11 November 1981, you commenced a third UA period that ended after 84 days on 3 February 1982. 
 
On 25 March 1982, pursuant to your guilty pleas, you were convicted at a Special Court-Martial (SPCM) of three specifications of UA lasting 20, 66, and 84 days, respectively, and for missing movement of your ship on 3 June 1981.  You received as punishment 90 days of confinement, forfeitures of pay for three months, a reduction in rank, and a discharge from the Navy with a Bad Conduct Discharge (BCD).  On 10 December 1982, the Navy-Marine Corps Court of Military Review affirmed the SPCM findings and sentence.  Following completion of the post-trial appellate review process in your case, your punitive discharge was ordered executed and you were ultimately discharged from the Navy with a BCD on 11 April 1984. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions through counsel, that included, but were not limited to:  (a) a BCD is a severe punishment and usually only the result of serious misconduct or criminal activity; (b) for 35 years you have suffered the penalty of a BCD, the penalty of a youthful immature mistake, and that you have worked very hard to overcome the effects of a BCD and become a productive member of society, (c) your performance of duty and post-service conduct does not warrant the continued punishment of a BCD, (d) a BCD deprives you of virtually all veterans benefits regardless of any past honorable service, (e) a BCD is universally regarded as shameful and the social stigma attached to a BCD makes it very difficult to obtain gainful post-service employment, and (f) when balancing the 35 years of the BCD against your minor misconduct, and coupled with the mitigating circumstances of your good work performance and post-service behavior and contributions, it is clearly consistent that your discharge has disproportionately affected your life.  However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case given the overall seriousness of your pattern of misconduct and your resulting court-martial conviction.  
 
Contrary to your contentions, the Board considered UA to be very serious misconduct and not minor in nature in your case.  The Board also observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average during your enlistment was 2.1 in conduct (proper military behavior).  Navy regulations in place at the time of your discharge required a minimum trait average of 3.0 in conduct, for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of misconduct.  Moreover, there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your misconduct merited your receipt of a BCD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board concluded that, despite your contentions, this is not a case warranting clemency.  The fact remains is that you left the Navy and entered into a UA status without any legal justification or excuse on three separate occasions while you were still contractually obligated to serve.  You were convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 
 
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,” 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. 
 
Sincerely,