DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 6782-19 
Ref: Signature Date 

Dear

This is in reference to your application of 25 June 2019 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 2 December 2019.  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, 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 21 October 1986.  On 23 April 1987, you received non-judicial punishment (NJP) for wrongful use of a controlled substance.  You were awarded forfeiture of pay, restriction, extra duties, and reduction in rank (RIR) to E-3.  The RIR was suspended for 6 months.  On 4 August 1997 and 2 February 1998, you were counseled for failure to meet physical readiness standards and enrolled in a command program.  You were advised that failure to take corrective action could result in administrative separation.  On 20 February 1998, the recommendation for your advancement in rank was withdrawn due to your second consecutive failure to meet physical readiness standards.  On 11 May 1999, you began a period of unauthorized absence (UA) that continued until 13 May 1999. You went UA again on 29 July 1999 for a period of 607 days.  Your record is incomplete in that it does not contain all of the documents pertaining to your discharge.  Based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears you were convicted by special court-martial (SPCM).  As part of your punishment, it appears that you were awarded a discharge from the Navy with a Bad Conduct Discharge (BCD).  You were placed on appellate leave awaiting your punitive discharge.  Following the completion of the post-trial appellate review process in your case, your punitive discharge was ordered executed and you were discharged from the Navy in absentia with a BCD on 30 March 2001. 

You request that the Board upgrade your discharge to at least an under other than honorable (OTH).  You assert that during your 16 years of service you received 3 honorable discharges and were awarded 3 Good Conduct Medals.  You said you made a terrible mistake of doing drugs that led to your court-martial and reduction in rank from E-6 to E-1 and a BCD.  You request consideration and forgiveness. 
The Board was sympathetic to your desire change your characterization of service, but the Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of fairness or clemency. The court-martial documentation is not in your service record.  However, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly discharged from the Navy with a BCD.  In your case the Board determined no clemency is warranted.  Further, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time. 

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,