Docket No: 4734-19 
Ref: Signature Date           

Dear  
 
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 7 November 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 in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy and began a period of active duty on 7 January 1999.  Between 15 February 2000 and 20 September 2000, you received nonjudicial punishment (NJP) three times for unlawful entry, two instances of destruction of government property, and disorderly conduct.  On 19 April 2001, you were convicted by general court-martial for violating the Uniform Code of Military Justice Article 120 (rape and carnal knowledge), Article 125 (sodomy), and Article 134 (general article).  You were sentenced to forfeiture of pay and allowances, confinement for 2 years, and a bad conduct discharge (BCD).  On 23 August 2005, after appellate review was completed, you were discharged with a bad conduct characterization of service as the result of a court-martial conviction. 
 
You requested the Board overturn your conviction and upgrade your discharge.  You asserted that you were falsely accused of rape when you had consensual, and you want to receive the retirement and other benefits that you were denied.  In support of your petition, you attached a letter of support from a retired Leading Chief Petty Officer (LCPO) you served under, dated 1 March 2017.  The LCPO wrote:  “The ‘crime’  was accused of and further convicted of was commonplace in the barracks.”  He described the barracks as a “love fest of activity.”  Additionally, he wrote “this information does NOT excuse  from the incident, but I pray the reader understands this atmosphere was a ‘norm’ in and how young sailors can allow drinking and extra sexual activities to get out of hand.”  The Board was sympathetic to your request to change your characterization of service, but the Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of fairness or clemency.  In your case the Board determined no clemency is warranted.  The Board in its review discerned no material error or injustice in the discharge. 
 
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.