Docket No: 2917-21 
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  
2 June 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 on 11 September 1991.  On 14 August 1992, civil authorities convicted you of battery.  You were sentenced to probation for six months.  On 6 May 1993, you received non-judicial punishment (NJP) for failure to obey a lawful order with intent to defraud.  On 27 January 1994, civilian authorities convicted you of driving on suspended license and careless driving.  In addition, on 27 January 1990, you received NJP for unauthorized absence (UA) for one day, absence from your appointed place of duty, and two specifications of unlawful entry.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense.   
 
After you waived your rights, your commanding officer (CO) forwarded your package to the separation authority (SA) recommending your discharge by reason of misconduct due to commission of a serious offense, with and other than honorable (OTH) characterization of service.  The SA approved the recommendation, and on 29 April 1994, you were so discharged.   
 
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 contentions that you were young, made bad decisions and learned from your behavior; it has been 26 years since your discharge, and you paid your debt by not being allowed to use your Veteran benefits.   
 
The Board noted that there is no provision in law or regulations that allows for re-characterization of a discharge automatically, due solely to the passage of time.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your two NJPs and two convictions by civilian authorities, 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, 
                                                                              
6/15/2021
Executive Director