DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SIN
Docket No: 09947-07
26 November 2008
This 1s in reference to your application for correction of your
naval record pursuant to the provisions of Title 10 of the United
States Code, section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 25 November 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.
You enlisted in the Navy and began a period of active duty on
5 August 1986 at age 17. You served without incident until
28 October 1990, when you were arrested and charged with second
degree murder, and three felony counts of assault with a firearm.
Subsequently, you were found guilty of those charges and
sentenced to 15 years to life for murder, and nine years, that
were to run concurrently, for the three counts of assault with a
firearm.
Based on this conviction you were processed for an administrative
discharge by reason of misconduct due to civil conviction. On
8 October 1991 you were notified of this pending administrative
separation action and elected to consult counsel and have your
case heard by an administrative discharge board (ADB).
On 26 November 1991, an ADB found that you had committed
misconduct due to civil conviction, and recommended that you
receive a suspended other than honorable (OTH) discharge.
However, your commanding officer (CO) forwarded your case to the
discharge authority concurring with the findings of the ADB
concerning misconduct, but that the separation should not be
suspended, and that you should be separated with an OTH
discharge. On 20 February 1992, the discharge authority
concurred with your CO and directed that you be separated under
other than honorable conditions by reason of misconduct due to
civil conviction. You were so discharged on 28 February 1992.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board found that
these factors were not sufficient to warrant any change in your
discharge given you civil conviction and ensuing incarceration
for very serious offenses. Further, you are advised that there
is no provision in the law or Navy regulations that allow for
recharacterization automatically due solely to the passage of
time. 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,
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