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

            Docket No: 4132-19 Ref: Signature Date 

Dear 

This is in reference to your application of 8 April 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 14 May 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, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

You enlisted in the Navy on 28 January 2000.  On 7 December 2011, you went to a General Court-Martial (GCM) and pursuant to your guilty plea, you were convicted of knowingly possessing images of child pornography on three separate computers.  The Military Judge (MJ) sentenced you to confinement for 42 months, total forfeitures of pay, reduction in rank to the lowest enlisted paygrade, and to be discharged from the naval service with a dishonorable discharge (DD). 

On 13 March 2012, the Convening Authority approved the GCM sentence and forwarded the record of trial to the Office of the Judge Advocate General of the Navy for appellate review. Following the completion of appellate review, your DD was ordered executed.  Ultimately, on 26 March 2014, you were discharged from the Navy with a DD. 

The Board carefully weighed all potentially mitigating factors in your case, including your contentions that included, but were not limited to:  (a) that you were wrongfully charged with an offense that you did not do, (b) that you were pressured by your lawyers into a plea bargain, (c) that you believe your girlfriend’s 14-year-old son was using your home computer and most likely was experimenting on the internet which was easily accessible in your home, and (d) you believe you are innocent of all of the charges that were used against you and that you were pressured into something that you now regret.  However, the Board determined these mitigating factors were not sufficient to warrant upgrading your discharge or granting any other relief in your case. 

The Board determined that there is no credible and convincing evidence in the record to indicate that you were wrongfully charged with possessing child pornography, coerced into pleading guilty, or that someone else put the child pornography on three separate computers.  The Board noted that during a GCM guilty plea such as yours, the MJ will only accept your guilty plea once they were satisfied that you fully understood the meaning and effect of your guilty plea, and only after determining that your plea was made voluntarily, of your own free will, and with full knowledge of its meaning and effect.  On the record, the MJ would have also had you state on the record that discussed every aspect of your case including the evidence against you and possible defenses and motions in detail with your lawyer, and that you were satisfied with your counsel’s advice.  Further, the MJ would have also had you state on the record that you were pleading guilty because you felt in your own mind that you were guilty.  Moreover, the Uniform Code of Military Justice states that during the appellate review process, the appellate court may affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.  In other words, the appellate court has a duty to conduct a legal and factual sufficiency review of the case. If any errors or improprieties had occurred at any stage in your case, the appellate court would have concluded as such and ordered the appropriate relief.  However, no substantive, evidentiary, or procedural defects were identified in your case. In the end, the Board concluded that any such suggestion or argument that you did not commit the offense to which you pled guilty is entirely without merit and not persuasive.  Accordingly, the Board determined that you knowingly and voluntarily pled guilty to possessing child pornography on three separate computers because you were indeed guilty of such offense. 

The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board determined that, despite your contentions, this is not a case warranting any clemency. 
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 and your serious misconduct involving child pornography, 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, 

6/7/2020