DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2183-19 Ref: Signature Date 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 19 September 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 together with all materials submitted by you and your attorney 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 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. While serving your first enlistment in the Navy, in February 2012, you were charged at a general court-martial (GCM) with attempted rape, attempted aggravated sexual assault, attempted forcible sodomy, aggravated assault, and assault consummated by a battery. On 25 February 2012 you were convicted of one specification each of aggravated assault (with exceptions and substitutions), and assault consummated by a battery. You were sentenced to confinement and forfeitures of pay for three months, and a reduction in rank to the lowest enlisted paygrade. You did not receive a punitive discharge. On 1 June 2012, the convening authority (CA) approved the GCM sentence and forwarded the record of trial to the Navy-Marine Corps Appellate Review Activity, Office of the Judge Advocate General of the Navy (OJAG) for appellate review. Prior to taking action, the CA considered all post-trial matters submitted by you and your defense counsel. On 18 June 2012, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense, as evidenced by your February 2012 GCM conviction. You exercised all of your rights, including the right to present your case to an administrative separation board. In the interim, on 3 September 2012, as part of the GCM appellate review process pursuant to the Uniform Code of Military Justice (UCMJ), OJAG examined the record of trial in your case. OJAG affirmed the GCM findings and approved sentence and did not note any deficiencies or order remedial relief. An administrative separation board was held. The board members were bound by the GCM findings on the question of whether misconduct occurred and voted unanimously that the evidence supported the basis for separation. The board unanimously voted to retain you in the Navy. However, on 25 September 2012, your commanding officer recommended that you be separated with a general (under honorable conditions) (GEN) discharge. In such cases, the separation authority becomes the Assistant Secretary of the Navy (Manpower & Reserve Affairs) (ASN), who is the Secretary of the Navy’s (SECNAV) designated representative. On 22 April 2013, PERS recommended to ASN that you be separated from the Naval service with a GEN discharge. ASN concurred with the PERS recommendation and approved your GEN discharge. Ultimately, on 3 June 2013, you were discharged from the Navy with a GEN characterization of service. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) that the GCM findings were erroneous, (b) that the evidence was legally and factually insufficient to support the guilty finding of UCMJ Article 128, (c) that SECNAV relied upon these erroneous findings and that the Petitioner’s administrative discharge is unfair and unjust, and (d) it is unfair that the Petitioner be given a GEN based upon an erroneous finding at a GCM, and that his characterization of service should not be based upon this isolated mistake and you had numerous commendatory character references and accomplishments. The Board noted that, pursuant to UCMJ Article 69 (a), OJAG conducts a legal and factual sufficiency review of GCM cases where a punitive discharge is not approved. In your case, OJAG specifically determined that, “no part of the findings or sentence is unsupported in law, and reassessment of the sentence is not appropriate. Accordingly, the findings and approved sentence are affirmed.” If your GCM verdict was erroneous and the evidence was legally or factually insufficient as you contend, OJAG would have concluded such and ordered the appropriate relief. Instead, OJAG unequivocally affirmed the guilty findings and sentence in your case, and did not identify any substantive, evidentiary, or procedural defects with your GCM conviction. The Board ultimately determined that your GCM conviction was not erroneous. The Board also noted that, although an individual’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. Accordingly, the Board determined your serious misconduct clearly supported the commanding officer’s decision to subsequently process you administratively and recommend your separation, and for the separation authority to ultimately issue a GEN discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your egregious misconduct, your request does not merit clemency. Lastly, in its review of your DD Form 214, the Board noted an administrative error in blocks 12a and 12c. Based on your enlistment contract, block 12a should be “2010 06 16” (not “2010 06 10” as you contend), and block 12c should reflect the correct net active service period based on the revised block 12a. However, the Board does not address requests to make minor clerical corrections of administrative errors to records and/or documents unless you have been separated from the service 62 years or longer. PERS has cognizance over requests to change records less than 62 years old. You may send your request to change blocks 12a and 12c to the following address: Commander, Navy Personnel Command (Code PERS-312), 5720 Integrity Drive, Millington, TN 38055-3120. 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,