Docket No: 4754-20 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 relevant portions of your naval record and your application, 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 for Correction of Naval Records, sitting in executive session, considered your application on 28 July 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 enlisted in the Marine Corps and began a period of active duty on 14 July 1998. On 2 November 1999, you were found guilty at special court-martial proceedings of violating Uniform Code of Military Justice, Article 80 (attempt to commit sodomy with a child under the age of 16), Article 92 (failure to obey a lawful order), Article 107 (false official statement), and Article 120 (did commit the offense of carnal knowledge), and Article 134 (orally communicate certain indecent language to a child under the age of 16, and wrongfully commit an indecent act with a child under the age of 16). The Court sentenced you to a reduction in rank to the grade of E-1 (Private), forfeiture of $600 base pay per month for 4 months, and a bad conduct discharge. The U.S. Navy-Marine Corps Court of Criminal Appeals dismissed specification 1 under Charge V, and affirmed the remaining findings and the sentence approved by the convening authority. On 4 April 2005, you were discharged from the Marine Corps on the basis of the court-martial conviction and received a bad conduct discharge. In your request to the Board, you have asked for a change to the findings, sentence of the courtmartial proceedings so that you are not required to register on the sex offender registry. You further request an upgrade from a bad conduct discharge to a general discharge. You state that at the time of your special court-martial proceedings in 1999, you pled guilty to engaging in indecent acts with a teenage female. You also state that you were 19 years old at the time, and that teenage female was 3 years younger. You provide a personal statement in which you note that you were stationed at Marine Corps in 1998, and had a barracks mate who was dating an underage female. You and he spent a lot of time with the female and her friends. You state that “we were both teenagers at the time of the offense and we were not smart enough to ask questions.” You contend that you accepted a plea agreement to only serve 90 days in the brig and that you were not told that you would have to register as a sex offender. You state that had you been told, you would have explored different options for legal representation. The issue has been devastating for your life. You assert that despite this, you have put yourself through college and have two amazing children. You have been an upstanding citizen with no legal issues. The Board reviewed your request and noted that it does not have the authority under SECNAVINST 5420.193 to change the findings of the special court-martial proceedings that resulted in your subsequent requirement to register as a sex offender. Therefore, the Board declined to take action on the findings of the special court-martial as they pertain to sex offender registry requirements. Furthermore, the Board noted that it does not have cognizance over the registry requirements that followed your 1999 special court-martial proceedings. With respect to your request for an upgrade from a bad conduct discharge to a general characterization of service, the Board carefully considered the information you submitted with your application, and noted the circumstances surrounding the charges for which you were found guilty. The Board determined that even in consideration of your contention that you were not properly advised on the registry consequences of your guilty pleas, you did not provide sufficient evidence to establish that you had ineffective assistance of counsel or were otherwise deprived of appropriate representation that resulted in an error or injustice that merits a change to the bad conduct discharge. The Board reviewed the nature of the charges against you and weighed your youth at the time of the offenses, the circumstances of your encounter with the underage female, and your post-discharge achievements despite the challenges you faced due to the special court-martial conviction. Nonetheless, in light of the totality of the circumstances, the Board concluded clemency is not appropriate. The Board determined that the nature of the misconduct for which you were convicted at special court-martial supported the bad conduct discharge, and that an upgrade is not warranted. 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,