Docket No: 1760-21 
Ref: Signature Date 
               
Dear  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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 14 April 2021.  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 and began a period of active duty on 24 May 2001.  Unfortunately, your administrative separation documents are not in your official military personnel file (OMPF).  However, based on the information contained on your Certificate of Release or Discharge from Active Duty (DD Form 214), it is presumed that you submitted a voluntary written request for an other than honorable (OTH) discharge for separation in lieu of trial by court-martial.  In the absence of evidence to contrary, it is also presumed that prior to submitting this voluntary discharge request, you would have conferred with a qualified military lawyer, you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As part of this discharge request, you would have acknowledged that your characterization of service upon discharge would be other than honorable (OTH).  On 5 May 2004, you were discharged from the naval service with an OTH characterization of service.   
 
The Board noted that on your DD Form 214, the narrative reason for separation is “In lieu of trial by court-martial,” and your separation code is “KFS,” which corresponds to a separation in lieu of trial by court-martial administrative discharge.   
 
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. You contend that you were wrongfully treated and threatened by your Chief Petty Officer and Division Officer, and you were accused of being in an unauthorized absence when you were not because they did not want you to go to the Master-at-Arms School.  
 
Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  The Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary (as is the case at present), will presume that they have properly discharged their official duties.   
About your contention, there is no evidence in the record and you presented none to support your contentions.  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, 
4/30/2021
Executive Director