Docket No: 8169-19 
Ref: Signature Date 

Dear  
 
This is in reference to your application of 26 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 4 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 that a personal appearance with or without counsel will not materially add to its 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 service on 16 September 1997.  Your pre-enlistment records indicate that you were granted two waivers: first, for two non-minor misdemeanors (battery and rape/kidnapping), and second, for two dependents.  You served for approximately seven months without disciplinary incident.  On 15 April 1998, you were absent without authorization (UA).  Your record indicates that on 5 May 1998, you returned from the period of UA of 20 days.  You were found physically fit for separation on 11 May 1998.  On 21 May 1998, you were discharged from the Navy on the basis of misconduct due to commission of a serious offense and received an other than honorable characterization of service and a reentry (RE) code of RE-4.  The Naval Discharge Review Board (NDRB) considered your request for an upgrade to your discharge characterization.  On 17 April 2006, NDRB notified you that your discharge was proper as issued and no change is warranted. 
 
You request a change to your other than honorable discharge, and stated that upon enlistment you were made aware of a criminal charge involving an ex-girlfriend.  You contend that your Lieutenant did not believe that the charge against you was dismissed and that you were deprived of your rights.  You provide a detailed personal statement and submit copies of filings you have made through your Congressional office. 
 
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that you were not believed by your Lieutenant and that you were deprived of your rights.  The Board noted that your administrative discharge package is not reflected in your available service record, but inferred that based on the timing of your return from your UA (5 May 1998) and your discharge date (21 May 1998), you likely waived your right to appear before an administrative separation board.  The Board concluded that based on your misconduct as reflected in your available record, an other than honorable was warranted due to your UA.  The Board considered your contentions regarding your Lieutenant and your deprivation of rights, but determined that you did not provide sufficient evidence to support your assertions.  The Board took into consideration your claim that you planned to pursue a legal career through your naval service, but were relegated to manual labor in your first few months of enlistment.  Although you indicate that the manual labor was punitive, the Board did not find sufficient evidence to establish that you were unjustly assigned to such duties.  In conclusion, the Board determined that your other than honorable discharge is supported by the information reflected in your service record and does not merit an upgrade due to error or injustice. 
 
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.