Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 19 February 2021. The names and votes of the panel members 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 the 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, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You originally enlisted in the Navy on 10 July 1987 and last reenlisted on 24 June 1994. On 8 July 1998, contrary to your pleas, you were convicted at a General Court-Martial (GCM) of forcible sodomy, assault, indecent acts, and receiving pornography over the Internet. You received as punishment a reduction in rank to the lowest enlisted paygrade (E-1), total forfeitures of pay, and a discharge from the Navy with a Bad Conduct Discharge (BCD). On 15 September 2005, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed only the forcible sodomy and pornography charges and set aside and dismissed the indecent act and assault charges as being multiplicious for findings with forcible sodomy. The NMCCA approved only so much of the sentence that provided for a reduction to pay grade E-1, forfeiture of two-thirds pay per month, and a BCD. On 11 September 2006 the U.S. Court of Appeals for the Armed Forces affirmed the NMCCA decision as to findings, but set aside and dismissed the portion of the sentence involving forfeitures because you did not receive any adjudged confinement and were on appellate leave in a no-pay status after trial. Upon the completion of appellate review in your case, on 14 February 2007 you were discharged from the Navy with a BCD and assigned an RE-4 reentry code. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. These included, but were not limited to your contentions that: (a) both trial and appellate counsel committed ineffective assistance of counsel (IAC) by failing to raise an issue with jury instructions on lesser included offenses at trial and on appellate review, respectively; (b) trial counsel provided an affidavit admitting he failed to offer to the jury a lesser included offense instruction to the forcible sodomy charge; (c) your sodomy conviction subjects you to having to register as a sex offender; (d) enforcement of the sex offender registry statute in is an ex post facto clause violation; and (e) the trial court did not include any confinement in its sentence. However, given the totality of the circumstances, the Board determined that your request does not merit relief. The Board did not believe that your record was otherwise so meritorious to deserve an upgrade. Additionally, the Board determined that Sailors should receive no higher discharge characterization than is due. The Board concluded that significant negative aspects of your conduct and/or performance greatly outweighed any positive aspects of your military record. The Board also determined that your misconduct constituted a significant departure from the conduct expected of a Sailor. The Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Furthermore, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Lastly, U.S. case law clearly and consistently indicates that registry reporting statutes are Constitutional. The Board also noted that there is no convincing evidence in the record to support your contention that you did not receive adequate representation or experienced IAC, and your defense counsel’s statement that he was purportedly ineffective at trial does not make it so. The Board concluded that you failed to meet your burden to show that: (a) your defense and appellate counsels’ performance was deficient and fell below an objective standard of reasonableness, and (b) that there was a reasonable probability of a more favorable result had your alleged deficiencies actually occurred. Moreover, the court-martial members were provided with standard jury instructions including an instruction on lesser included offenses by the military judge in your case. Additionally, Article 66(c) of the Uniform Code of Military Justice states, that in a case referred to it, the NMCCA may act only with respect to the findings and sentence as approved by the convening authority, and that the NMCCA may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In other words, the NMCCA has a duty to conduct a legal and factual sufficiency review of the case regardless of whatever errors were or were not asserted/assigned by appellate defense counsel. If IAC had occurred at any stage in your case, a three-judge panel on the NMCCA would have concluded such, and ordered the appropriate relief. The NMCCA affirmed certain guilty findings and the sentence in your case, and NMCCA did not identify any substantive, evidentiary, or procedural defects, including IAC. Accordingly, there is insufficient support for the contention that IAC occurred. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions this is not a case warranting any clemency. You were properly convicted at a GCM of serious misconduct and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. Lastly, even in light of the Wilkie Memo and reviewing the record holistically and given the totality of the circumstances, the Board determined that your request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in your discharge and concluded that your misconduct clearly merited your BCD. You are entitled to have the Board reconsider its decision upon 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, 2/27/2021 Executive Director