Docket No: 7192-19                                                                                                                           
Ref: Signature date 
 

Dear : 
 
This letter 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 26 November 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, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 
 
Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel would not materially add to its understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy on 10 February 1993.  On 28 April 1997, you received nonjudicial punishment (NJP) for twelve instances of obtaining services under false pretenses.  On 26 February 1998, you received a second NJP for an unauthorized absence (UA) that began on 15 August 1997 and ended when you were apprehended on 30 January 1998.  Your record is incomplete in that it does not contain the documents pertaining to your administrative discharge but, based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears that after being afforded all of your procedural rights, the separation authority directed your discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to pattern of misconduct.  You were discharged with an OTH characterization of service on 27 March 1998. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were discharged for not returning to the command after leave.  The Board specifically considered your contention you did not return because you were a lesbian and “felt like you were being mistreated.”  The Board noted that, by your own statement, you were discharged because of your UA, and were therefore not discharged solely on the basis of the “Don’t Ask, Don’t Tell” policy.  Further, based on review of your incomplete record, the Board presumed regularity and determined there was insufficient evidence to support a finding that your misconduct should be mitigated because you were purportedly being mistreated because you were a homosexual.  The Board, noting that you did not provide any documentation to support your contentions, found no evidence of error or injustice in your discharge or characterization of service. 
 
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.