DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 9285-19 
Ref: Signature Date 

This letter is in reference to your reconsideration request dated 15 September 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. 

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 2 January 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.  

The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability and an upgrade to your characterization of service. You assert that your mental health conditions and your mother’s hardship issues contributed to your misconduct.  Unfortunately, the Board disagreed with your rationale for relief.  First, the Board applied liberal consideration when considering your case based on your documented mental health diagnoses.  Second, the Board determined you were criminally responsible for the misconduct that formed the basis for your discharge from the Navy.  The Board determined there was insufficient evidence to support a finding that you were not mentally responsible for your misconduct.  Third, despite applying liberal consideration, the Board found you were not eligible for disability processing based on your bad conduct discharge from the Navy.  Disability regulations directed misconduct processing to supersede disability processing.  So even if there was evidence of unfitness, the Board concluded you were properly discharged for your misconduct based on the disability regulations and their finding that you were criminally responsible for the misconduct.  Fourth, the Board considered the mitigation evidence involving your mother’s hardship issues but determined it did not support relief in your case.  While the Board was sympathetic to the circumstances that led to your hardship requests and your current mental health conditions, they felt it did not excuse your multiple unauthorized absences sufficiently to merit an upgrade to your characterization of service.  The Board noted you were convicted by three courts-martial and found guilty at a non-judicial punishment hearing in approximately 18 months of service. In their opinion, you were already given the benefit of the mitigation when you were retained by the Navy after your initial two court-martial convictions and your record of misconduct was too serious to mitigate with the evidence you presented. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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, 


1/7/2020