Docket No: 6739-19 
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 19 August 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 reenlisted in the Navy on 16 April 1993.  On 28 May 1993, you received non-judicial punishment (NJP) for wrongfully making statements of a sexual nature, wrongfully touching four females, three specifications of committing indecent assaults upon various females of a sexual nature, and nine specifications of communicating indecent language to various females of a sexual nature.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense.  You elected to consult with legal counsel and subsequently requested an administrative discharge board (ADB).  
 
The ADB found that you committed misconduct due to commission of a serious offense and recommended you receive an other than honorable (OTH) discharge due to commission of a serious offense.  The discharge authority concurred with the ADB and directed an OTH discharge by reason of misconduct.  On 15 December 1993, you were discharged. 
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your characterization of service, reinstated to the rank of E-4, and change pursuant to the Don’t ask, Don’t tell Repeal Act of 2010.  However, the Board concluded these factors were not sufficient to warrant re-characterization of your discharge given your misconduct.  The Board also noted that your misconduct was of a sexual nature against various female Sailors.   
 
Under the Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of military records following repeal of 10 U.S.C. §654).  The Board can grant a request to upgrade a discharge that was based on homosexuality when two conditions are met.  (1) The original discharge was based solely on “Don’t Ask Don’t Tell” (DADT) or similar policy, and (2) there were no aggravating factors such as misconduct.  In reviewing your record and the evidence you provided, the Board determined aggravating factors existed and concluded your discharge was proper as issued and no change is warranted. 
 
In regard to your contentions that a shipmate’s boyfriend accused you of sleeping with his girlfriend and you did not have a knife when you threaten to cut him, the Board noted that there is no evidence in your record, and you submitted none, to support your contentions.  The Board also noted that you requested an ADB, which found you guilty and recommended you receive an OTH characterization of service.  Regarding your contention that you served four years honorably prior to being discharged, the Board noted that a Sailor’s service is characterized at the time of discharge based on performance during the current enlistment. 
     
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,