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

Dear 


This is in reference to your application for correction of your late husband's naval record pursuant to the provisions of Title 10, United States Code, Section 1552. 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. 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 three­member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 10 January 2019. 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 and personal statements, together with all material submitted in support thereof, relevant portions of your husband's service records, and applicable statutes, regulations and policies. 

Regarding your late husband's request for a personal appearance, the Board dete1mined that a personal appearance by you with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered this case based on the evidence of record. Your husband enlisted in the Navy on 16 November 1994. On 16 February 2001, he went to a General Court Martial (GCM) and was convicted of indecent assault, false official statement, larceny of over $8000, and larceny of merchandise from the base liquor store. He received as punishment 16 months of confinement, a dishonorable discharge (DD), and a reduction in rate to E-1. A portion of the confinement was suspended. Following his release from confinement, he was placed in an appellate leave status awaiting discharge. On 31 January 2007, your husband was ultimately discharged from the Navy with a DD. 

The Board carefully weighed all potentially mitigating factors, such your husband's contentions that included, but were not limited to: he was never in trouble growing up and was never in trouble after leaving the Navy, that following his discharge he obtained a college degree and became an ordained minister, the military judge was changed right before the trial started, that the indecent assault never happened and video tapes could have proven his innocence, that he didn't have control of submitting documents that led to getting overpaid, that video tapes would have showed his innocence regarding the theft at the liquor store, and that he provided an email from his ex-wife bragging about how she set your late husband up for the crimes. However, the Board determined these factors were not sufficient to warrant relief in his case given the overall seriousness his misconduct involving a sex offense and grand theft larceny. The Board also deemed the exculpatory email from his ex-wife suspect and not to be credible. 

The Board also noted that, although it cannot set aside a conviction, it may grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board believed that given the evidentiary and procedural safeguards in place throughout the GCM process, it would be virtually impossible to wrongfully convict a military defendant based on trumped up or falsified evidence with the "beyond a reasonable doubt" standard applied in military criminal trials. The Board also noted that there is no evidence in the record that your late husband did not receive adequate representation or experienced ineffective assistance of counsel. Lastly, during the appellate review process, no substantive, evidentiary, or procedural defects were discovered and his discharge was ordered executed as adjudged. Accordingly, the fact remains that your ex-husband was properly tried and convicted in a military criminal forum, and unfortunately, the Board did not find any other evidence of an error or injustice in this application that warrants changing either his DD, or his narrative reason for separation. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously 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, where 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. 

Executive Director