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NAVY | BCNR | CY2014 | NR4547 14
Original file (NR4547 14.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

SIN

Docket No: 4547-14
22 April 2015

 

 

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.

Although your application was not filed in a timely manner, the
Board found it in the interest of justice to waive the statute of
limitations and consider your application on its merits. A
three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on

21 April 2015. 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 and began a period of active duty on

20 August 1992. On 16 August 1994, you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for attempted sodomy, indecent
assault, wrongfully having intercourse with a female Sailor, not
your wife. Prior to submitting this request for discharge, you
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 1 September 1994, 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 labor.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your record of service, post service medical issues, and desire
to upgrade your discharge. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge given your misconduct that resulted in

charges being preferred to a court-martial for serious offenses,
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.

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.

Si el

     

ROBERT J. O’NEILL
Executive Director

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