DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 5284-08
8 April 2009
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, 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 7 April 2009. 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, 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 reenlisted in the Navy on 28 September 1988 and continued to
serve without disciplinary incident until 18 December 1989, when
you received nonjudicial punishment (NUP) for assault and
battery. The punishment imposed was a $580 forfeiture of pay,
reduction to paygrade E-4, and restriction and extra duty for 15
days. A portion of the punishment was suspended for six months.
On 28 March 1990 you received your second NUP for disrespect and
disobedience. About a month later, on 26 April 1990, you were
convicted by summary court-martial (SCM) of assault and battery.
You were sentenced to confinement on bread and water for three
days, a $482 forfeiture of pay, reduction to paygrade E-1, and
confinement for 24 days.
Subsequently, you were notified of pending administrative
separation action by reason of misconduct due to a pattern of
misconduct. At that time you waived your right to consult with
legal counsel and to present your case to an administrative
discharge board (ADB). On 17 May 1990 your commanding officer
recommended an other than honorable discharge by reason of
misconduct due to a pattern of misconduct. On 21 May 1990 the
discharge authority approved this recommendation, and on 29 May
1990 you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and assertion that you were told that your discharge
would be automatically upgraded. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your misconduct which resulted in two NUPs and a court-martial
conviction. Further, you were given an opportunity to defend
yourself, but waived your procedural right to present your case
to an ADB. Finally, no discharge is automatically upgraded due
solely to the passage of time. Accordingly, your application has
been denied.
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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