DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 2306-09
17 February 2010
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 17 February 2010. 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 enlisted in the Navy on 27 August 2004 at age 19 and began a
period of active duty on 28 September 2004. You served for
nearly a year without disciplinary incident, however, on 2 August
2005 you began a period of unauthorized absence (UA). On 10
August 2005, while in a UA status, you were apprehended and
confined by civil authorities on charges of felonious assault and
conspiracy to commit a felony. On 21 November 2005 you were
convicted by civil authorities of malicious wounding and
conspiracy. You were sentenced to unsupervised probation for 12
months, restitution in the amount of $1,300, and an unspecified
court cost. On 22 November 2005 you were returned to military
custody, thus terminating your period of UA. As a result, on 16
December 2005, you received nonjudicial punishment (NJP) for a
143 day period of UA. The punishment imposed was reduction to
paygrade E-2, a $1,384 forfeiture of pay, and restriction and
extra duty for 30 days. A portion of the punishment was
suspended for six months.
On 10 January 2006 you were notified of pending administrative
separation action by reason of misconduct due to commission of a
serious offense as evidenced by civil conviction. At that time
you waived your right to consult with legal counsel and to
present your case to an administrative discharge board (ADB). on
13 January 2006 your commanding officer recommended discharge
under other than honorable conditions by reason of misconduct due
to commission of a serious offense as evidenced by civil
conviction. Subsequently, the discharge authority approved this
recommendation and directed your commanding officer to issue you
an other than honorable discharge by reason of misconduct due to
civil conviction, and on 7 March 2006, you were so discharged and
were assigned an RE-4 reenlistment code.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to change your reenlistment code. It also
considered your assertions that your performance was exemplary,
you performed with little or no supervision, and that you were
recommended for advancement. Nevertheless, the Board concluded
these factors were not sufficient to warrant a change of your
reenlistment code because of the seriousness of your misconduct
in both the military and civilian communities. Further, you were
given an opportunity to defend yourself, but waived your
procedural right to present your case to an ADB. Finally, the
assignment of an RE-4 reenlistment code is mandatory when a
Sailor is discharged by reason of civil conviction. 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,
I Rog Sat
W. DEAN PF
Executive or
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