Docket No. 9549-19
Ref:   Signature date 
 
Dear
   
 
This letter is in reference to your reconsideration request dated 1 October 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.      
 
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 25 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 27 December 1984.  On 2 July 1985 you received non-judicial punishment (NJP) for unauthorized absence (UA), missing movement, and making a false official statement.  On 30 July 1985, you received NJP for UA.  On 29April 1986, you received NJP for UA.  On 22 July 1986 you received NJP for UA.  On 5 August 1986 you were issued a “Page 13 counseling warning” (Page 13) documenting your NJPs for UA and for disobeying orders.  The Page 13 expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and administrative separation processing.   
 
However, on 22 September 1986 you received NJP for insubordinate conduct and assault consummated by a battery (unlawfully striking a petty officer).  On 20 February 1987 you received NJP for two specifications of UA. 
 
On 6 March 1987 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  On 17 March 1987 you elected in writing to expressly waive your rights to consult with counsel and to present your case to an administrative separation board.  Ultimately, on 15 April 1987 you were discharged from the Navy for misconduct due to a pattern of misconduct with an other than honorable (OTH) characterization of service and were assigned an “RE-4” reentry code. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) false claims were filed against you when you were serving overseas, and (b) you made a mistake of taking the OTH because you were young and scared, and your girlfriend also had a baby at the time and were being sued for child support.  However, the Board found that your contentions and mitigating factors were without merit and insufficient to warrant upgrading your discharge or granting any other relief in your case.   
 
The Board noted that you did not provide any convincing evidence to corroborate your contention that false charges were ever levied against you.  The Board also noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  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.  The Board determined that significant negative aspects of your conduct and/or performance outweighed any positive aspects of your military record, and that your overall service is not otherwise so meritorious to warrant a discharge upgrade.  In the end, the Board concluded that you received the correct discharge characterization and reentry code based on the seriousness of your misconduct, and that such discharge action was in accordance with all Department of the Navy directives and policy at the time of your discharge.  
 
Lastly, the Board noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 2.8 in conduct/military behavior.  Navy regulations in place at the time of your discharge required a minimum trait average of 3.0 in conduct/military behavior for a fully honorable characterization of service.  The Board determined that your conduct/military behavior marks during your active duty career were a direct result of your misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of discharge.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge and the Board found that your pattern of serious misconduct merited your receipt of an OTH 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 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,