DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7760-19 Ref: Signature Date Dear This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. 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, sitting in executive session, considered your application on 10 February 2020. 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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps and began a period of active duty on 14 July 1976. On 13 June 1977, you received nonjudicial punishment (NJP) for disobeying a lawful order and awarded restriction and extra duties. On 1 May 1978, you received a second NJP for being drunk on duty, being asleep on duty, and urinating on the company barracks walls. You were awarded restriction, extra duties, and forfeiture of pay. Except for a portion of the forfeiture of pay, the punishment was suspended for six months. On 28 August 1978, you received a third NJP for disobedience of a non-commissioned officer and of a commissioned officer, and the suspension of your punishments from 1 May 1978 was vacated. You were awarded forfeiture of pay, restriction, and extra duties. On 25 January 1979, you were convicted by general court-martial (GEN) for violating Article 113 (misbehavior of a sentinel) and Article 120 (rape) of the Uniform Code of Military Justice (UCMJ). You were sentenced to reduction in rank to E-1, forfeiture of pay, confinement with hard labor for 15 years, and a dishonorable discharge. On 3 May 1979, your court-martial Convening Authority disapproved and dismissed the first charge, approved the second charge, and directed your sentence to be reassessed. On 19 May 1980, the U. S. Court of Military Review found the evidence in your case sufficient to sustain a conviction if appropriate instructional guidelines were provided to the members; however, the instructions were fatally deficient. Therefore, the error required reversal. On 5 September 1980, you were retried and sentenced to reduction in rank to E-1, forfeiture of pay, confinement with hard labor for 1 year, 4 months, 16 days, and a dishonorable discharge. On 18 November 1981, you received the Navy-Marine Corps Court of Military Review decision and elected not to petition the U S Court of Military Appeals for grant of review. On 22 March 1982, the Naval Clemency and Parole Board denied your request for Restoration and mitigated your dishonorable discharge to a bad-conduct discharge (BCD). On 30 July 1982, you were discharged with a BCD. You request the Board upgrade your discharge to honorable. You assert that during the appeal process, it was discovered that the judge provided the wrong instructions to the members and you were offered a dishonorable discharge with time served. However, during higher-level review the board dismissed the dishonorable discharge and gave you a BCD. You claim your defense attorney coerced and persuaded you to accept the BCD rather than going through another trial. Lastly, you state you would like the upgrade in order to be considered for entitlement to VA benefits. The Board was sympathetic to your desire change your characterization of service, but the Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of fairness or clemency. In your case the Board determined no clemency is warranted. The Board in its review discerned no probable material error or injustice in the discharge. The Board noted that you provided no evidence to support your contention of coercion by your attorney. Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith. Lastly, there is no provision of law or in Navy regulations that allows for an upgrade to the characterization of service due solely to the passage of time. 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 the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or 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,