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

Docket No: 0806-19 
Ref: Signature Date 


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 8 January 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. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Navy and began a period of active duty on 9 August 1988.  On 1 December 1988, you received non-judicial punishment (NJP) for wrongfully purchasing intoxicating beverages for minors.  On 16 June 1989, you received your second NJP for urinating in public and drunk and disorderly conduct.  On 2 July 1990, you were convicted by general court-martial of assault and drunk and disorderly conduct, which was of a nature to bring discredit upon the armed forces.  As punishment, you were awarded forfeiture of pay, confinement, reduction in rank, and discharge from the naval service with a bad conduct discharge (BCD).  After the BCD was approved at all levels of review, you were discharged on 5 September 1991. 

The Board carefully weighed all potentially mitigating factors in your case, the documentation you submitted, and your desire to upgrade your discharge.  The Board considered your contentions that (1) your discharge is inequitable and should be upgraded to honorable due to clemency; (2) the punishment for your crime was excessively punitive; (3) in the majority of states with public intoxication laws, public intoxication is considered a misdemeanor, punishable by fines, jail time, probation, or community service; (4) you waived your right to a trial by pleading guilty without a plea bargain and successfully completed your sentencing without issue; 
(5) you have since been a model citizen within your community and family, with 30 years of marriage, raising three children, and building your own plumbing company; (6) you have volunteered thousands of hours with your church in different capacities; and (7) you have mentored young men and been an example for them to follow.  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 clemency.  Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.”  The Board determined that no clemency is warranted in your case.  In this regard, the Board commends you on your post service conduct, however, concluded that there was insufficient evidence to warrant clemency given the severity of your misconduct that resulted in two NJPs and a BCD.  In its review, the Board discerned no probable material error or injustice in your discharge, nor did it find that clemency was warranted. 

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.