Docket No. 7125-19
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 for Correction of Naval Records, 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 on 25 May 1990.  On your performance evaluation for the period ending 15 March 1996, you were ranked #38 out of 40 sailors in your summary group, rated “Progressing” with trait average of 2.57 out of a possible 5.0.  Performance comments on this evaluation included:  (a) “Appearance in uniform is unsat; Professional Military deportment is lacking with respect to phone manners.” (b) “Gets by with doing the bare minimum.” and (c) “Not setting an example for others as a motivator, an organizer and a communicator.”  On 20 September 1996, you went to non-judicial punishment (NJP) for six different offenses:  unauthorized absence, willful disobedience of a superior commissioned officer, failure to obey a lawful general order, dereliction of duty, 4 specifications of assault and assault consummated by a battery, and adultery.  As punishment, you received forfeitures of pay (suspended), reduction in rank to petty officer third class (E-4), and extra duties.   
 
Your command initiated administrative discharge action by reason of misconduct due to the commission of serious offense.  Unfortunately, the administrative separation notification and statement of awareness/election of rights 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 and discharged from the Navy for misconduct due to the commission of a serious offense after you waived your right to an administrative separation board.  Ultimately, on 27 November 1996 you were discharged from the Navy with an “under other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reentry code.   
 
The Board carefully weighed all potentially mitigating factors, including your contentions that you had a pending civil case that was dismissed, and that you were informed that if the case was dismissed and you had a clean record for six months your discharge would convert to an honorable discharge.  However, the Board found that your contentions 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 and disregard for good order and discipline while on active duty.  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.  The Board also noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, 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 serious misconduct clearly 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,” 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 and your discreditable involvement with military authorities, 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 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,                                                                              

9/17/2020

Executive Director