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 25 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy on 25 September 2002.  Following initial recruit training and “A” school, you reported for duty on board the  in . 
 
On 3 October 2003, you began a period of unauthorized absence (UA) from your ship.  On 4 December 2003, your UA status terminated with your arrest in .  On 5 December 2003, you began another UA period that lasted until your arrest on 3 February 2004 in . 
 
On 23 February 2004, you submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for your two separate UA periods totaling 122 days.  Prior to submitting this request, you were afforded an opportunity to consult with counsel but you waived your right to counsel.  On 27 February 2004, the Commanding Officer of , approved your request and directed an undesirable discharge for the good of the service.  As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  Ultimately, on 9 March 2004, you were separated from the Navy with an other than honorable (OTH) discharge. 
 
The Board carefully weighed all potential and possible mitigating factors, including your contentions that included, but were not limited to:  (a) your wife had a high risk pregnancy and there was a tragedy at her mom’s house and she could no longer stay there, (b) this tragedy caused so much stress on you that you had to act, (c) your superiors informed you about a hardship discharge but the process was being held up by an E-4 who had it out for you, (d) your issue needed immediate attention so you made the decision to go save your family, (e) you wish you had another opportunity at being an air traffic controller and your goal is to become a part of the Navy family again, (f) you want your discharge upgraded to you can go to college and be a greater dad and businessman than you are today, (g) you truly feel that you were unjustly treated, and due to your command’s lack of attention and mistreatment you were forced to sacrifice your career for the well-being of your family, and (h) you were meritoriously advanced to the rank of E-3 for having referred four individuals to a Navy Recruiter who joined the Navy.  However, the Board found that these factors and contentions were not sufficient to warrant relief in your case given your voluntary request for a good of the service discharge in lieu of a trial by court-martial, and the overall seriousness of your misconduct and lack of respect for good order and discipline while on active duty.  Additionally, characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act or acts that constitute a significant departure from the conduct expected of a sailor.  The Board also noted that there is no convincing evidence in your record to support your contention that you were the victim of mistreatment.  The Board also considered your post-service accomplishments, but ultimately concluded that your UA periods warranted an OTH characterization.  Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits, or enhancing educational or employment opportunities.  The simple fact remains is that you left the Navy while you were still contractually obligated to serve.  You went into a UA status without any legal justification or excuse, and you remained away for 122 days. 
 
The Board determined that your administrative separation was proper and in compliance with all Navy directives and policy at the time of your discharge.  The Board concluded that your discharge request was clearly voluntary on its face, and there is no indication that your due process rights were violated.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and concluded that your serious misconduct merited your receipt of an OTH discharge. 
 
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 as a result of such convictions,” 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.