DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 110-12
26 September 2012
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 19 September 2012. 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
4 December 1989 at age 19. You received nonjudicial punishment
(NJP) on 5 June and 9 August 1990 for two instances of
unauthorized absence (UA) from your unit for a period totaling
two days, and failure to obey a lawful order. You were
counseled regarding your misconduct and warned that further
offenses could result in administrative separation. On
24 January 1991, you were convicted by summary court-martial
(SCM) of failure to go to your appointed place of duty,
insubordinate conduct toward a superior noncommissioned officer,
two instances of malingering by exaggerating an alleged neck and
cervical injuries and pain to your hip, and wrongfully
communicating a threat to a nurse. The sentence imposed was
confinement, a forfeiture of pay, restriction for 30 days and
a reduction in paygrade. On 21 February 1991, you received NUP
for failure to go to your appointed place of duty and two
instances of failure to obey a lawful order. You were notified
of pending administrative discharge processing with an other
than honorable (OTH) discharge due to misconduct (commission of
a serious offense). You waived all of your procedural rights,
including your right to an administrative discharge board (ADB).
On 23 April 1991, you received the OTH discharge for misconduct
(commission of serious offense).
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth, overall
record of service and contention that you were the victim of
racism. Nevertheless, the Board found that these factors were
not sufficient to warrant recharacterization of your discharge
given the seriousness of your misconduct that resulted in three
NJPs and a SCM. The Board noted that you waived your right to
an ADB, your best opportunity for retention or a better
characterization of service. The Board also noted that there is
no evidence in your record, and you submitted none, to support
your contention of racial prejudice. Finally, there is no law
or Navy regulation which provides that an unfavorable discharge
may be upgraded, based solely on the passage of time or good
conduct in civilian life subsequent to leaving naval service.
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,
\o Dea |
W. DEAN
Executive r or
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