Docket No: 7963-19 
Ref: Signature Date           
 

Dear : 
 
This is in reference to your application of 3 August 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 23 March 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 reenlisted in the Navy and began a period of active duty on 31 August 1981.  On 12 March 1982, you began a period of unauthorized absence (UA) that continued until you surrendered on 29 March 1982.  On 2 May 1982, you were convicted by summary court-martial (SUM) for violating Article 86 (UA) and Article 87 (missing movement) of the Uniform Code of Military Justice (UCMJ).  You were sentenced to confinement with hard labor, restriction, and forfeiture of pay.  On 13 May 1982, you began a period of UA that continued until you were apprehended by civilian authorities on 8 March 1983.  On 30 March 1983, you were convicted by special court-martial (SPCM) for violating Article 86 (UA) and Article 134 (breaking restriction) of the UCMJ.  You were sentenced to forfeiture of pay for two months, confinement with hard labor for 90 days, reduction in rank to E-1, and a bad-conduct discharge (BCD).  Following the completion of the post-trial appellate review process in your case, your punitive discharge was ordered executed and you were ultimately discharged from the Navy with a BCD on 8 February 1984. 
 
You request that the Board upgrade your discharge.  You assert you were afraid for the health and well-being of your wife and unborn child.  You were stationed aboard the   and preparing for a 6-month deployment.  Your wife was 8 months pregnant and having a difficult time.  She previously lost a child, and she was alone with only you to take care of her.  You contend you went to the Chaplain and asked if you could be with your wife when she had the baby, but you never received an answer.  Therefore, the day before you were scheduled to leave, you did not report.  You stated that you knew it was wrong, but your wife and child were more important. 
 
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.  In your case, the Board determined no clemency is warranted and there was no probable material error or injustice in your discharge. 
 
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.