Docket No: 9086-19
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 18 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 5 July 1988.  On 15 March 1990 you received non-judicial punishment (NJP) for resisting apprehension, breach of the peace, two specifications of assault consummated by a battery, and drunk and disorderly conduct.  You received a “Page 13” counseling warning (Page 13) documenting your NJP.  The Page 13 made specific recommendations for corrective action and expressly warned you that any further deficiencies in performance and/or conduct may result in disciplinary action and in processing for administrative separation. 
 
On 19 and 20 March 1991, you underwent a mental health evaluation due to suicidal ideation.  You were diagnosed with alcohol abuse and a personality disorder with antisocial, immature features.  The Medical Officer noted that you were considered to be a risk to yourself and others if retained on active duty and recommended that your command pursue an administrative separation.  On 21 March 1991 you received NJP for insubordinate conduct towards a non-commissioned officer and two specifications of communicating a threat. 
 
On 27 March 1991 you underwent a separation physical exam and you were found qualified for separation from active duty.  However, on 8 April 1991 you were placed in pre-trial confinement awaiting court-martial.   
 
On 18 July 1991 you were convicted at a General Court-Martial (GCM) of disobeying a lawful regulation by wrongfully having a dangerous weapon in your possession.  You were acquitted of the corresponding assault charge and specification. 
 
On 3 October 1991 you were provided notice that you were being administratively processed for separation from the Navy by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  On 4 October 1991 you expressly waived your rights to consult with counsel, submit statements on your own behalf, and to request an administrative separation board.   
 
However, prior to your discharge, your GCM conviction was disapproved by the Judge Advocate General of the Navy (OJAG) on 30 October 1991.  OJAG ordered that all rights, privileges, and property of which you had been deprived by virtue of the findings and sentence so disapproved to be restored.  Ultimately, on 7 February 1992 you were administratively discharged from the Navy for misconduct due to the commission of a serious offense with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) based on OJAG’s disapproval, the findings of guilt, the charge and specifications were dismissed and thus no pattern of misconduct exists, (b) based on the facts you deserve an honorable discharge, and (c) you respectfully request the Board reverse this injustice to uphold the reputation and honor of the U.S. Navy and because it’s the right thing to do in the interests of justice.  However, the Board found that your contentions and mitigating factors were not sufficient to warrant upgrading your discharge, changing your reentry code, or granting any other relief in your case given the misconduct reflected in your record.        
 
The Board initially noted that to be administratively processed for a pattern of misconduct it requires only two or more NJPs in the current enlistment and that the member violate a Page 13 warning.  Even with the dismissal of your GCM conviction, the Board noted that you still met the criteria for a pattern of misconduct given your two NJPs (March 1990 and March 1991), coupled with your violation of the March 1990 Page 13 warning by committing additional misconduct.  The Board determined that the ultimate timing of when your command initiated administrative separation processing is not relevant to the analysis of your case.  The Board also noted that several of your NJP offenses qualified as “serious offenses” under the Uniform Code of Military Justice for administrative separation processing as well.  
 
Additionally, the Board noted that the record shows you were notified of and expressly waived in writing your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  The Board also noted that 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.  Lastly, 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.  In the end, the Board concluded that you received the correct discharge characterization and reentry code, and that such discharge action was in accordance with all Department of the Navy directives and policy at the time of your discharge.  Accordingly, the Board determined that there was no impropriety or inequity with your discharge, and the Board concluded that your serious misconduct clearly merited your receipt of an OTH characterization.  
 
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,