DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
      
Docket No: 2329-19 

This is in reference to your application of 13 February 2019 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 that 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 5 March 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, and applicable statutes, regulations, and policies. 

You reenlisted in the Navy and began a period of active duty on 9 April 2010 after serving honorably from 20 September 2004 to 8 April 2010.  On 20 April 2012, you were convicted by General Court-Martial (GCM) for two specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ). Although the GCM documentation which details the charges was not available for review, it appears from the documentation you submitted that you were convicted of charges dealing with child pornography.  You were sentenced to 60 months confinement, reduction in rank, and a dishonorable discharge (DD).  Although the documentation for the GCM review is not available in your record, it appears from your Certificate of Release or Discharge from Active Duty (DD Form 214), that your DD was subsequently approved at all levels of review.  On 9 July 2013, you were discharged with a DD by reason of court-martial and assigned a RE-4 (not recommended for reenlistment) reentry code. 

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you should have been granted clemency.  Specifically, you contend that your discharge was procedurally defective and inequitable.  The Board considered your statement that you “should not have been separated under the UCMJ” but did not understand your discussion that “IAW MARCOM 6203 because this must be proven by a preponderance of evidence” or your contention that “this is especially true if the servicemember has more than six years or is being considered for an unfavorable discharge.”  Additionally, the Board considered your contention that your discharge “has served its purpose” and noted the advocacy letters submitted by your stepfather and Empowerment Therapy Services. In the end, the Board noted that, although it cannot set aside a conviction, it may grant clemency in the form of changing a characterization of service, even one awarded by a court-martial.  Unfortunately, the Board did not find evidence of an error or injustice that warrants granting clemency nor did it find any procedural defects.  Based on the available evidence, the Board determined your DD, separation information, and reentry code are appropriate considering your GCM conviction. 

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, 

3/27/2020