DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S COURTHOUSE ROAD SUITE 1001 ARLINGTON VA 22204-2490 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 21 August 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 10 January 1984. Following initial recruit training and “A” school, on 28 July 1984 you reported for duty on board the USS in , . On 15 November 1984, you received non-judicial punishment (NJP) for being drunk on duty on board your ship. On 22 June 1985, you received NJP for the larceny of government property. On 3 February 1988, you received NJP for drunk driving. On 29 February 1988, you submitted a voluntary written request for an administrative discharge under other than honorable conditions (OTH) in lieu of trial by court-martial for attempted larceny, conspiracy to commit larceny, and larceny. Prior to submitting this request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. On 4 April 1988, Commander approved your request and directed an OTH discharge. As a result of this course of action, you were spared the stigma of a court-martial conviction for your crimes, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Ultimately, on 4 April 1988, you were discharged from the Navy with an OTH characterization of service. The Board carefully weighed all potential and possible mitigating factors, including your contentions that included, but were not limited to: (a) you admit your wrongdoing and are extremely remorseful for this isolated lapse of judgment, and that this mistake has greatly affected you the past 31 years, (b) your enlisted performance record (Page 9) clearly indicates a Sailor who admirably performed his duties, (c) your average trait marks in service were 3.8, and you were qualified in 20 watch station titles, (d) when you balance this one incident of misconduct against your otherwise honorable service an OTH discharge is clearly unfair, and (e) you have clearly met your burden and demonstrated by a preponderance of the evidence that you were erroneously and unfairly discharged and your character of service was improper or inequitable. However, the Board found that these factors and contentions were not sufficient to warrant relief in your case given your voluntary request for an OTH in lieu of a trial by court-martial, and the totality of your record while on active duty. The Board noted that characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act that constitutes a significant departure from the conduct expected of a sailor, and determined that the misconduct noted in your record fits that description. The Board also considered your post-service accomplishments, but ultimately concluded your misconduct warranted an OTH characterization. Absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits, or enhancing educational or employment opportunities. The Board also determined that your administrative separation was proper and in compliance with all Navy directives and policy at the time of your discharge. The Board concluded that your discharge request was clearly voluntary on its face, and there was no indication that your due process rights were violated. Your request was made with full disclosure of the relevant facts and knowledge that this discharge would deprive you of virtually all VA benefits and that you would be prejudiced in certain civilian endeavors with an OTH characterization. Ultimately, after consulting with counsel you still determined that an OTH discharge was in your best interests in lieu of a court-martial and a likely criminal conviction. Accordingly, the Board determined that any argument that you were erroneously or unfairly discharged, or that your characterization of service was improper or inequitable, was unsubstantiated. The Board also noted that the car battery larceny incident forming the basis of your OTH discharge was not an isolated lapse in judgment. You also went to NJP three separate times prior to your theft of the car battery, one of which was for larceny of government property. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and concluded that the documented misconduct contained in your record merited 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 as a result of such convictions,” 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 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,