DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 6046-08
5 March 2009
This is 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
4 March 2009. 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 that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.
On 1 July 1985, you reenlisted in the Navy at age 28 after two prior
periods of honorable service. During March 1986, you were convicted
in civilian court of grand theft, ordered to pay restitution and
placed on probation. On 19 March 1986, you were released to the
Federal Marshall for failure to pay court ordered restitution and
were subsequently returned to your command. On 23 April 1986, you
were convicted in civilian court of violation of probation by failing
to pay restitution. It appears that your charges were reduced to a
misdemeanor and probation was terminated after you paid a portion of
the restitution. On 13 May 1986, you were counseled regarding your
misconduct and warned that further infractions could result in
disciplinary action or an other than honorable (OTH) discharge.
On 30 March 1987, you had nonjudicial punishment for use of
marijuana. During the period 19 June to 9 October 1987, you were in
an unauthorized absence (UA) status and you missed the movement of
your ship. On 18 February 1988, you were convicted by a special
court-martial of the 112 day period of UA.
On 3 May 19838, your commanding officer initiated administrative
separation by reason of misconduct due to commission of a serious
offense. In connection with this processing, you acknowledged that
separation could result in an OTH discharge and elected to have
your case heard by an administrative discharge board (ADB). On
9 June 1988, an ADB convened and found that you were guilty of
misconduct due to commission of a serious offense, and recommended
an OTH discharge. On 15 July 1988, the Secretary of the Navy
approved the discharge recommendation and directed an OTH discharge
by reason of misconduct due to commission of a serious offense.
On 2 August 1988, you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potential mitigation, such as your prior
periods of honorable service. The Board also considered your
contention that you went UA because you were unjustly treated and
belief that you deserve an upgrade because you have been a model
citizen since 1988. Nevertheless, the Board concluded that these
factors were not sufficient to warrant recharacterization of your
discharge due to the seriousness of your misconduct that continued
even after you were warned that further infractions could result in
an OTH discharge. Regarding your contention, there is no evidence in
the record to support it. Furthermore, there is no provision in the
law or regulations that allows for recharacterization of service due
solely to good post service conduct or the passage of time. The
Board also noted that your case was heard by an ADB, which was 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 change is 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,
Se ed
Executive D r
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