Docket No. 6678-19
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 that 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 18 June 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. 
 
You enlisted in the Navy and began a period of active duty on 5 May 2015.  On 10 March 2016, you went to non-judicial punishment (NJP) for larceny and for making a false official statement.  As punishment, you received forfeitures of pay, restriction, and extra duties, but were not reduced in rank.  At the time of your NJP, you held the rank of fireman apprentice (E-2). 
 
Your command initiated administrative discharge action by reason of misconduct due to a pattern of misconduct.  Unfortunately, the administrative separation documentation is not in your service record.  However, the Board relied on a presumption of regularity to support the official actions of public officers.  In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation using “notification procedures” and discharged from the Navy for misconduct due to a pattern of misconduct.  The least favorable characterization of service you could have received with notification procedures was General (Under Honorable Conditions) (“GEN”).  The Board also observed that your rank at discharge was fireman recruit 
(E-1), which likely meant you went to NJP a second time for unrelated offenses prior to your discharge and received a reduction in rank.  On 1 July 2016, you were discharged from the Navy with a GEN characterization of service and assigned an “RE-4” reentry code. 
 
The Board carefully weighed all potentially mitigating factors, including your contention that you were separated early due to your command’s inability to disclose alternative options rather than separation.  However, the Board found that your contention and mitigating factors were not sufficient to warrant upgrading your discharge, changing your reentry code, or granting any other relief in your case given the overall seriousness of your misconduct.  The Board determined that significant negative aspects of your conduct or performance outweighed the positive aspects of your overall military record and that a GEN characterization of service is appropriate.  Accordingly, the Board concluded that your current characterization and re-entry code does not reflect an error or injustice that merits corrective action. 
 
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 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,                                                                               

9/15/2020

Executive Director