Docket No. 8513-19
Ref: Signature Date
                   
MR 
 
Dear Mr.  
 
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 11 September 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 4 June 1996.  On 9 October 1997 you were convicted at a Summary Court-Martial (SCM) of two specifications each of larceny and forgery.  On 31 October 1997 you received a written “Page 13” counseling warning (Page 13) documenting your SCM misconduct.  The Page 13 expressly warned you that any further deficiencies in performance and/or conduct could result in disciplinary action and in processing for administrative separation. 
 
Thereafter, on 29 July 1998 you were convicted at a Special Court-Martial (SPCM) for a fifty-day period of unauthorized absence (UA).  You received as punishment forty days of confinement, forfeitures of pay for two months, a reduction in rank to E-1, and a discharge from the Navy with a Bad Conduct Discharge (BCD).  On 9 September 1998, you commenced another period of UA that was terminated on 15 March 1999 when civilian authorities in,  apprehended you.  There is no record of any punishment for this 187-day UA.  In the interim, on 16 February 1999, the Convening Authority approved your SPCM sentence as adjudged, and on 7 April 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 20 April 2000. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) your Navy career didn’t end like you had hoped it would, (b) that you believe that if you had a better understanding of the military justice system you could have spoken up or had witnesses to fill your type of character, and (c) since the Navy you have graduated from college, been married for over eleven years, have two children, work in a private clinic and have received numerous customer service awards.  However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case.  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. 
 
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, the totality of the circumstances do not support a grant of clemency.  The Board also considered your post-service conduct; however, the Board did not find any evidence of an error or injustice in this application that warranting an upgrade to your 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,” 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,