DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 0018-21 Ref: Signature Date Dear Petitioner: 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 9 July 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). You enlisted in the Navy on 5 February 1998. On 23 July 1998, you received nonjudicial punishment for two periods of unauthorized absence (UA) totaling five days and two hours. On 8 April 1999, you received a civilian conviction for carrying a concealed weapon. On 1 November 1999, you received another civilian conviction for carrying a concealed weapon and were issued a retention warning from your commanding officer (CO). On 8 September 2000, you were issued a military protective order from your CO due to allegations of assault and battery, damage to personal property, violating a court ordered restraining order, and other inappropriate behavior by you toward your wife. On 21 November 2000, you were convicted by a civilian court for assault and battery of a family member. On 22 February 2001, you were again convicted by civilian court for disobeying a turn signal and driving with a suspended license. On 18 May 2001, you were convicted by summary court-martial (SCM) for failure to report the larceny of government property, making a false official statement to a command investigator, and larceny on divers occasions between 28 July 2000 and 11 September 2000. You were sentenced to confinement, reduction in rank, and a fine. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to a pattern of misconduct, commission of a serious offense, and civilian conviction and by reason of convenience of the government due to physical or mental conditions. After you waived your right to an administrative discharge board and elected your right to submit a statement to the general court-martial convening authority, your CO recommended discharge by reason of misconduct due to a pattern of misconduct, commission of a serious offense, and civilian conviction and by reason of convenience of the government due to physical or mental conditions with an other than honorable (OTH) characterization of service. The discharge authority concurred with the recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to commission of a serious offense. On 28 June 2001, you were discharged with an OTH characterization of service. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention your discharge was “unfair at the time,” “procedurally defective,” and “unfair now.” Specifically, you contend you should not have been separated because your misconduct was not proven by a preponderance of evidence. You further contend you were never afforded the right to a separation board, counsel, or the opportunity to present your case to an administrative discharge board. However, the Board noted you requested a SCM and waived your right to an administrative discharge board as part of a plea deal after being served charges for a special court-martial. Further, the Board noted the record reflects you consulted counsel before submitting the SCM request and were later assisted by counsel in submitting clemency matters. Further, the Board considered your contention that it was a “procedural defect” for your command to initiate administrative separation rather than yourself. The Board noted you state “per reference (d)” but do not provide any indication of what “reference (d) is.” The Board also considered your contention “the command was authorized to administratively separate” but, noting your statement that “the command in this case did not have the proper authority to administratively separate” you, the Board was unable to decipher your exact contention. Additionally, the Board considered your contentions that the OTH discharge “does not serve a further purpose” because the events that took place are “no longer relevant” and you have “lived since in as reasonable a manner as [you] could.” The Board also considered your contention you “gave as much as [you] could to the U.S. Navy.” The Board also noted you did not did not submit advocacy letters or post-service documents to be considered for clemency purposes. Unfortunately, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service, changing your reentry code, or changing your narrative reason for separation. The Board, applying liberal consideration, concluded there was insufficient evidence of an error or injustice that warrants granting clemency in the form of an upgraded characterization of service. 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 and your contentions discussed above. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your misconduct 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, 8/2/2021 Executive Director