DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S$. COURTHOUSE ROAD, SUITE f001
ARLINGTON, VA 22204-2490
SIN
Docket No: 8801-13
1 October 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 30 September 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.
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
12 June 1989. The Board found that on 13 August 1990, you were
diagnosed by medical personnel with a borderline intellectual
functioning and secondary to borderline intelligence, both of
which were severe and existed prior to entry onto active duty.
At that time, it was recommended that you be administratively
separated from the Navy. On 27 August 1990, you received
nonjudicial punishment (NUP) for failing to go to your appointed
place of duty (extra military instruction). You received
restriction and a reduction in paygrade. On 12 September 1990,
you were counseled regarding your mental conditions and warned
about the consequences of further deficiencies and or misconduct.
Although your record is incomplete, on 29 January 1992, a medical
entry states that you were pending an other than honorable (OTH)
discharge in lieu of court-martial for assault. Prior to
submitting this request for discharge, you would have conferred
with a qualified military lawyer, were advised of your rights,
and warned of the probable adverse consequences of accepting such
a discharge. Subsequently, your request for discharge was
granted, and on 24 February 1992, you received an OTH discharge
in lieu of 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 EADCE
The: Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your record of
service, post service accomplishments, character letter, and
desire to upgrade your discharge. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge given your NUP, medical
diagnosis, pending SPCM charges for assault, and request for
discharge. The Board believed that considerable clemency was
extended to you when your request for discharge was approved.
The Board also concluded 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. 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 within one year from the date of the Board's decision.
New evidence is evidence not previously considered by the Board
prior to making its decision in your case. 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.
Sincexyely,
OBERT . O'NEILL
Executive Director
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