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

Docket No: 359-19 
Ref: Signature Date  

Dear  
 
This is in reference to your application of 23 October 2018 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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 19 December 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 material submitted by you and your attorney in support thereof, relevant portions of your naval record, and 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. 
 
You enlisted in the Navy and began a period of active duty on 15 May 2013.  In October 2014, you went to a General Court-Martial (GCM).  Contrary to your pleas, you were convicted by a jury, including enlisted members, of one specification each of sexual assault and adultery.  You were sentenced to confinement, forfeiture of pay for six months, and a reduction in rank to the lowest enlisted paygrade.  Your sentence did not include a punitive discharge.  The convening authority (CA), Commander U.S. Naval Forces Japan, 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. 
 
In the interim following your GCM conviction, your command would have provided you notice that you were being administratively processed for separation from the Navy by reason of misconduct due to the commission of a serious offense.  Unfortunately, your administrative separation documents are not in your service record.  However, the Board relies on a presumption of regularity to support the official actions of public officers.  Given your narrative reason for separation and corresponding separation code as stated on your DD Form 214, and absent any evidence to rebut the presumption, including any evidence submitted by you, the Board presumed that you were properly processed for administrative separation and discharged from the Navy for the commission of a serious offense.  The Board specifically noted on your DD Form 214 that the narrative reason for separation is “Misconduct (Serious Offense),” and the separation code is “GKQ,” which collectively correspond to an administrative discharge board (ADB) case involving a serious offense.  Ultimately, on 5 November 2015, you were discharged from the Navy with an other than honorable (OTH) characterization of service. 
 
As part of the GCM appellate review process pursuant to Article 69(a) of the Uniform Code of Military Justice (UCMJ), OJAG examined the record of trial in your case.  OJAG affirmed the GCM findings and approved the sentence and did not note any legal deficiencies or otherwise order remedial relief as provided for in UCMJ Article 69. 
 
The Board carefully weighed all potentially mitigating factors in your case, such your contentions that included, but were not limited to:  (a) that the decision by OJAG not to refer your Article 69 appeal to the Navy-Marine Corps Court of Criminal Appeals (NMCCA) was arbitrary, capricious, unfair, unjust, and inequitable, (b) that your brief submitted through counsel, was 34 pages in length and each assignment of error (AOE) was accompanied by a discussion of the relevant law, facts and extensive argument as to why your case was appropriate for appellate review, (c) that your AOEs each raised serious questions of law and fact which not only called your findings of guilt into question, but also raised serious questions related to the state of the law at issue in your case, (d) that the legal issues raised in your appeal have applicability beyond your case and it would serve the Department of the Navy well to have an appellate court review such issues, (e) that in promulgating OJAG’s decision, OJAG provided absolutely no discussion of the legal or factual issues raised in your brief, nor was there any explanation as to how or why OJAG determined that the issues raised in the brief warranted no further review, (f)  that OJAG’s decision is the definition of arbitrary and capricious, and permitting OJAG to summarily dismiss these serious assignments of legal and factual error with the stroke of a pen would be a severe injustice to not only you, but to the Navy’s military justice system as a whole.  However, the Board determined these mitigating factors and contentions were not sufficient to warrant the requested relief in your case. 
 
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.”  You provided a brief to OJAG detailing your assignment of legal errors and factual deficiencies.  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 did not find the existence of probable material error or injustice in the processing of your case.   
 
Lastly, on 11 August 2016, the NMCCA issued an opinion resolving your constitutional AOE.  In U.S. v.  Solis, 75 M.J. 759 (N-M.  Ct.  Crim.  App.  2016), the NMCCA held that Article 120(b)(3) was not unconstitutionally vague on its face (or as applied to appellant’s case).  OJAG issued its decision in your case on 14 October 2016 in the wake of the Solis opinion.  Accordingly, the Board was not willing to direct OJAG to forward your case to the NMCCA for appellate review of an already settled issue. 
 
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 “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and 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, your request does not merit relief. 
 
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,