Docket No. 3558-21
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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 12 August 2021.  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.   
 
A review of your record shows that you entered active duty with the Navy in February 2001.  On 14 June 2002, you commenced a period of unauthorized absence that ended on 27 March 2003.  Based on your request to be discharged in lieu of trial by court-martial, you were discharged on 17 April 2003 with an Other than Honorable characterization of service.  On 4 March 2010, the Naval Discharge Board denied your request for an upgrade in which you argued that your misconduct was due to immaturity and an illness of your grandmother.  You also submitted a disability benefits brief from May 2020 in which your counsel argues that you suffered a head injury that led to cognitive issues and Epilepsy.   
 
The Board carefully considered your arguments that you deserve an upgrade to your characterization of service based on your history of seizures.  You assert that your conditions caused you to go into an unauthorized absence status and that you continued to be affected by your condition.  Unfortunately, the Board disagreed with your rationale for relief. 
 
In reviewing the evidence in your case, the Board concluded the preponderance of the evidence does not support granting you an upgrade to your characterization of service.  The Board found no evidence that supports your assertion that your seizures somehow contributed to your decision to remain in an unauthorized absence status for approximately 286 days.  In addition, the Board took into consideration that you already received a large measure of mitigation of your misconduct when the Navy chose to administratively separate you in lieu of trial by court-martial.  In light of the seriousness of your misconduct, the Board determined, it was more likely than not, that your misconduct would have resulted in a punitive discharge.  Especially when your misconduct is weighed against the brevity of your Honorable active duty service.  So despite evidence that you currently suffer from Epilepsy and cognitive issues, the Board was not persuaded that an upgrade to your characterization of service was appropriate.  In their opinion, the evidence supports a finding that your misconduct was a significant departure from conduct expected of a Sailor and merits an Other than Honorable characterization of service despite the mitigation evidence you provided.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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, 


8/18/21

Deputy Director