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

Docket No: 5921-20  
Ref: Signature Date 


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 11 June 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 a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Navy on 15 June 1998. On 10 November 1999, you were convicted by special court martial for a nine-day unauthorized absence, insubordinate conduct, failure to obey an order or regulation, wrongful use and possession of a controlled substance, assault, and violation of a general article.  You were sentenced to confinement, reduction in rank, and a bad conduct discharge (BCD).  Your record is incomplete in that it does not contain appellate documentation, but a review of your Certificate of Release or Discharge from Active Duty (DD Form 214) reflect the BCD was subsequently approved at all levels of review.  On 6 April 2005, you were discharged. 

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your indecent assault charge should be removed because it was “consensual and nonsexual.”  The Board, however, is not authorized to remove charges from your court-martial record.  Although not requested, the Board considered whether a characterization of service upgrade was warranted based on clemency.  As part of its review, the Board considered your contention you were threatened and forced to plead guilty even though you were not guilty.  Unfortunately, the Board did not find evidence of an error or injustice nor did you submit any advocacy letters or documentation for consideration that warrants changing your BCD.  The Board concluded there was insufficient evidence of an error or injustice that warrants granting clemency in the form of an upgraded characterization of service. 

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 desire to remove the indecent assault charge and your contention you were forced to plead guilty.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct, as evidenced by your SPCM, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  

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, 
6/23/2021 
Executive Director