DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMW
Docket No: 5523-07
24 January 2008
This is in reference to your application for correction of your
naval record pursuail to Lhe provisitis of Litle LU ol Lhe United
States Code, section 1552.
A three-member panel of the Board for Correction of Nava.
Records, sitting in executive session, considered your
application on 23 January 2008. 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, your naval record, and applicable statutes, regulations,
and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
On 24 April 1989, you enlisted in the Navy at age 23. On
13 October 1989 and 25 January 1990, you had nonjudicial
punishment (NJP) for two instances of unauthorized absence (UA)
totaling about five days. On 7 February 1990, you were counseled
for having established a pattern of misconduct, and warned that
further infractions could result in disciplinary action or
administrative separation. On 15 May 1990, a medical evaluation
stated that you complained about having flat feet and abdominal
pain. The evaluation stated that both conditions existed prior
to enlistment and that you had suffered a gunshot wound to the
kidney three years earlier, but your kidney was normal. The
evaluation concluded by recommending a fitness for duty
determination. On 16 May 1990, podiatry recommended six months
of limited duty for the purposes of awaiting determination of
your fitness for duty. On 3 August 1990, you had NJP for two
instances of willful disobedience of a lawful order, disorderly
conduct, absence from your appointed place of duty, and
disrespect.
On 3 August 1990, your commanding officer initiated
administrative separation by reason of misconduct due to a
pattern of misconduct and commission of a serious offense. In
connection with this processing, you acknowledged that separation
could result in an other than honorable (OTH) discharge and
objected to discharge, but waived the right to have your case
heard by an administrative discharge board (ADB). On
9 August 1990, the separation authority approved the discharge
recommendation and directed an OTH discharge by reason of
misconduct due to a pattern of misconduct. On 31 August 1990,
you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potential mitigation, such as your youth.
The Board also considered your contention that you were going to
get a medical discharge until you were falsely accused of
causing an international incident. Nevertheless, the Board
concluded that these factors were not sufficient to warrant
recharacterization of your discharge or changing the reason for
discharge, due to your misconduct that continued even after you
were counseled and warned that further infractions could result
in administrative separation. Regarding your contentions, there
is no evidence in the record to show that you were going to
receive a medical discharge; and individuals awaiting a fitness
for duty determination are still subject to the Uniform Code of
Military Justice. Furthermore, the record does not show that you
were discharged due to one incident, but three, which is why your
reason for discharge is misconduct due to a pattern of
misconduct. Finally, the Board noted that you waived the right
to have your case heard by an ADB, your best opportunity for
retention or a more favorable characterization of service.
Therefore, the Board concluded that the discharge was proper as
issued and no changes are warranted. Accordingly, your
application has been denied. The names and votes of the members
of the panel will be furnished upon request.
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 submission of new and material
evidence or other matter not previously 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,
Ww. EAN P
Executive Di
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