Docket No: 9798-19  
Date: Ref Signature 
 

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, sitting in executive session, considered your application on 24 August 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy and began a period of active service on 8 September 1992.  You went on a period of unauthorized absence (UA) from 29 December 1993, until your surrender on 19 January 1994.  On 24 January 1994, you made an admission of homosexuality and requested discharge from naval service.  On 18 February 1994, you received non-judicial punishment (NJP) for UA, and missing ship’s movement.  As a result of the foregoing, you were notified of the intent to administratively separate you by reason of misconduct due to commission of a serious offense, at which point, you waived your right to consult with counsel and a hearing before an administrative discharge board.  On 18 March 1994, your commanding officer recommended your discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to commission of a serious offense.  On 12 April 1994, the discharge authority approved and directed your discharge.  On 28 September 1994, you were discharged with an OTH characterization of service by reason of misconduct. 
 
Your application was reviewed under the Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of military records following repeal of 10 U.S.C. §654).  The Board can grant a request to upgrade a discharge that was based on homosexuality when two conditions are met:  (1) the original discharge was based solely on “Don’t Ask Don’t Tell” (DADT) or similar policy, and (2) there were no aggravating factors such as misconduct. 
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade the characterization of your discharge and contention that you believe your discharge should be upgraded due to changes in the don’t ask don’t tell policy.  The Board noted that you were not discharged by reason of homosexuality, rather, you were discharged due to misconduct by reason of commission of a serious offense (i.e., UA, and missing ship’s movement).  Consequently, the Board concluded your characterization of service was proper as issued and no change is warranted.  The Board, in its review, discerned no probable material error or injustice in your discharge. 
 
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 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 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,