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 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 initially enlisted in the Navy on 7 May 1990 and reenlisted in May 1994.  In February 1998 you were convicted at a Special Court-Martial (SPCM) for offenses related to the larceny of government property in excess of $35,000.  You received as punishment a reduction in rank to the lowest enlisted paygrade (E-1), confinement, and a discharge from the Navy with a Bad Conduct Discharge (BCD).  On 6 July 1998 you were released from confinement after serving 144 days in the brig.  On 13 July 1998 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 15 September 1999.  
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) that a failure to grant your request for post-service clemency of your BCD constitutes both an error and an injustice because your post-service law-abiding activities and positive contributions to both your family and community are significant and clearly outweigh the transient nature of the behavior and type of violation for which you admitted guilt; (b) your request for post-service clemency should be granted because under the circumstances of your case, the punishment you endured was exponentially greater than what is typical for the same category and degree of offense; (c) that you had no prior history of misconduct and at all times relevant both dutifully and faithfully served the United States Navy, and (d) that a change in characterization is warranted from punitive to administrative after considering your post-service conduct, lack of involvement in the civilian criminal justice system, as well as the underlying nature of the accusation to include your full cooperation in the investigation that resulted in your conviction.  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 given the totality of the circumstances.  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 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 facts of this case do not support a grant of clemency.  The Board additionally considered your post-service conduct and accomplishments, as well as your NCIS cooperation.  However, the Board determined that you were properly convicted at a SPCM of serious misconduct and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD.   
 
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,