Docket No: 9277-19
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 relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 2 December 2020.  The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their 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 on 10 December 1992.  On 15 January 1994, civil authorities arrested and charged you with attempted armed robbery.  On 17 February 1994, after pleading guilty, civil authorities convicted you of attempted armed robbery.  On 15 April 1994, you filed a motion to withdraw your plea.  On 20 May 1994, the Court denied your motion to withdraw your plea and sentenced you to confinement to the department of corrections for five years.  As a result, you were notified of pending administrative separation action by reason of misconduct due to civil conviction.  You failed to respond to the notification from the Navy, which resulted in the waiver of your rights.  On 14 July 1994, your commanding officer (CO) forwarded your package to the Separation Authority (SA) recommending separation with an other than honorable (OTH) characterization of service by reason of misconduct due to civilian conviction.  The CO’s recommendation was approved for an OTH characterization of service.  However, the SA directed the reason for separation as misconduct due to commission of a serious offence.  On 28 July 1994, you were separated from the Navy.  
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge, your contentions that clemency is warranted because it is an injustice for you and your family to continue to suffer the consequences of an OTH discharge, and under current standards you would not have received an OTH discharge.  The Board also noted your contentions that you have been a good citizen since discharge and that your youth and immaturity impaired your ability to serve.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your civilian conviction outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  
 
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,