Docket No: 4640-19 
Ref: Signature Date               

MR
 
Dear Mr. : 
 
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 4 September 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, policies. 
 
You enlisted in the Marine Corps on 24 August 2004.  On 21 November 2006, you received nonjudicial punishment for disobeying a lawful order and assault.  On 17 October 2008, you were convicted by general court martial (GCM) for rape, indecent exposure, and assault consummated by a battery and sentenced to confinement, forfeiture, and dishonorable discharge (DD).  The DD was subsequently approved at all levels of review.  On 3 September 2010, you were discharged. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were unjustly convicted of the offenses and dishonorably 
discharged.  Specifically, you contend that ineffective assistance of your counsel and unlawful command influence contributed to the unjust finding of guilty.  The Board considered each of your alleged errors at your GCM which you contend resulted in the unjust finding and sentence.  The Board noted you contend the GCM failed in its “duty of candor” because the prosecution did not notify the judge or state for the record that one of the witnesses lied and/or changed his testimony from his original statement.  The Board also considered your contentions that your counsel was ineffective and noted many of the contentions you raised were specifically considered by the appellate court which was the appropriate forum for such contentions.  The Board further considered your contention of unlawful command influence, specifically your contentions regarding the unredacted record of trial and the investigating officer’s unlawful “push” of charges by saying “attempted penetration suffices as sexual intercourse.”  Additionally, the Board considered your “impeachment of the verdict” contention that one of the members “admitted to me he had made a mistake and wanted to help overturn my conviction,” but was “deployed to Afghanistan and couldn’t be reached” in a possible attempt to “cover up the injustice.”  Further, the Board considered your contention regarding the appellate court’s decision, specifically that its decision was “contradictory.”  The Board considered each of the “other points to consider” outlined in attachment two of your submission which detailed problems you had experienced with your counsel, witness and victim lies and promiscuous behavior, alleged irregularities with the processing of your misconduct, and case law you contend applies to the facts of your GCM.  Additionally, the Board considered your contention that the “appeal and notice of appeal was never explained to me or brought up in any way.” Lastly, the Board considered your handwritten statement, attachment 3 of your submission, and the undated, unsigned “Remarks” attachment in your submission which contend, among other things previously stated, that “it was never about B__’s well being because my Condyloma Acuminata would have been stated for the record, the JAGS (all of them) had to have known a higher up wanted this, no objections or trial counsel not stating a change in testimony for the record.”   
 
The Board carefully considered each of your contentions, the entirety of your submission, and relevant portions of your naval record, and applicable statutes, regulations, policies.  The Board noted that it cannot set aside a conviction, but may only 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 overcomes the government’s presumption of regularity or that warrants changing your DD.  Further, the Board, noting you did not provide any advocacy letters or documentation regarding your post-service accomplishments, did not find evidence of an error or injustice that warrants granting clemency in the form of an upgraded characterization of service. 
 
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 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,