DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
BIG
Docket No: 7742-13
19 August 2014
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 August 2014. 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. In addition, the Board considered the
report of the Naval Discharge Review Board, dated 23 April 2009,
a copy of which is attached.
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.
You enlisted in the Navy and entered a period of active duty on
7 November 2001. You received an adverse performance evaluation
for 16 July 2004 to 25 February 2005 and were not recommended
for retention. You then requested a discharge under other than
honorable (OTH) conditions for the good of the service to avoid
trial by court-martial for an unknown offense or offenses.
Prior to submitting this request, you would have consulted with
qualified military counsel and acknowledged the adverse
consequences of receiving such a discharge. The separation
authority approved your request for a discharge under OTH
conditions. On 3 November 2005, you were separated with a
discharge under OTH conditions for the good of the service to
avoid trial by court-martial. As a result of this action, you
were spared the stigma of a court-martial conviction and the
potential penalties of a punitive discharge and confinement at
hard labor.
The Board, in its review of your entire record, carefully
considered all potentially mitigating factors, such as your
youth, health issues, and current desire to upgrade your
discharge. Nevertheless,’ the Board concluded that these factors
were not sufficient to warrant recharacterization of your
discharge due to your misconduct and request for discharge.
Furthermore, the Board believed that considerable clemency was
extended to you when your request for discharge to avoid trial
by ¢gurt-martial was approved. It was also clear to the Board
that you received the benefit of your bargain with the Navy when
your request for discharge was granted and should not be
permitted to change it now. Finally, you are advised that no
discharge is automatically upgraded due merely to post service
good conduct or 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,
ROBERT D. ZSALMAN
Acting Executive Director
Enclosure
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