Docket No. 8175-19
Ref: Signature Date

 
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 initially enlisted in the Navy on 26 October 1992 and reenlisted on 23 September 1996.  On 28 June 1997 you commenced a period of unauthorized absence (UA) and you were declared a deserter on 28 July 1997.  Your UA period terminated on or about 23 June 1998 after lasting approximately 359 days. 
 
On 23 October 1998, you were convicted at a Special Court-Martial (SPCM) for your 359-day UA and also for the wrongful use of a controlled substance.  You received as punishment 75 days of confinement, forfeitures of pay for three months, a reduction in rank to E-1, and a discharge from the Navy with a Bad Conduct Discharge (BCD).  On 25 March 1999 you were placed on involuntary appellate leave awaiting your punitive discharge.  Following 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 31 August 2000. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) that your separation date of 31 August 2000 is not accurate as you completed your time for cocaine drug use and UA on 23 December 1998, which should be the proper date of your discharge; and (b) your discharge should be with an other than honorable (OTH) characterization of service, and not BCD as that was what was agreed upon after serving your time.  However, the Board found that your contentions and the mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case.     
 
The Board noted that you were convicted at a SPCM and your adjudged sentence included a BCD.  There is no evidence in your record of any SPCM pre-trial agreement expressly disapproving a BCD.  The Uniform Code of Military Justice states that during the appellate review process, the appellate court may affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.  In other words, the appellate court has a duty to conduct a legal and factual sufficiency review of the case to ensure that the result of the proceedings conformed to the law.  However, no substantive, evidentiary, or procedural defects were identified in your case and, accordingly, the Navy and Marine Corps Appellate Leave Activity issued a supplemental SPCM Order to execute your BCD on 31 August 2000.  Accordingly, any argument that your BCD was supposed to be an OTH is unsupported by the record. 
 
Moreover, there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your serious misconduct clearly merited your receipt of a BCD. 
 
The Board also noted, contrary to your contention, that 31 August 2000 is your correct discharge date.  Your discharge date is based on the execution of your punitive discharge, not the date of your release from confinement or the commencement of involuntary appellate leave.   
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board concluded that, despite your contentions, this is not a case warranting clemency.     
 
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,” 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,