Docket No: 5433-19
Ref: Signature Date


 
 
Dear  : 
 
This letter 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 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 21 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, as well as applicable statutes, regulations, and policies.  The Board also considered the 3 April 2020 advisory opinion (AO) furnished by Headquarters Marine Corps Military Personnel Law Branch (JPL), as well as your rebuttal. 
 
The Board carefully considered your request to be advanced on the retired list as an E-9, Master Gunnery Sergeant (MGySgt).  The Board considered your contention that the members in your court-martial were not properly informed and did not have the proper information on how your reduction in rank would affect your final retirement pay.  You assert that the court-martial panel believed you would be allowed to retire based on your “high-three” pay calculation, and as a result, the panel reduced you in rank, thinking it would not affect your retired pay.  You contend that, had the panel had the correct information, it is likely you would not have been reduced in rank as drastically as you were, or at all.  You argue that, although the Convening Authority agreed to change your reduction from E-5 to E-6, this does not compensate you given the statement that you furnished from the panel member, or the actions of the panel, because the panel intended you to be able to receive retired pay as an E-9. 
 
The Board noted that you pled guilty to violating two Articles of the Uniform Code of Military Justice as a MGySgt.  You chose to be sentenced by members with enlisted representation, and you had no pretrial agreement.  The court-martial panel members sentenced you to reduction and forfeitures which they deemed appropriate based on the evidence presented.  When your counsel uncovered information that indicated the members’ sentence was disproportionate to their intent, the Convening Authority mitigated the sentence. 
 
The Board noted that you disagreed with the advisory opinion’s recommendation to deny your petition because you cannot overcome the presumption that the Convening Authority acted in a regular manner in the conduct of his official duties, and that this is an incorrect statement of law.  You did, however, request that the Board approve your petition on the basis of clemency, and on the fact that you have suffered a great injustice by the court-martial panel acting on mistaken beliefs that you would be able to receive E-9 retired pay.  The Board also considered your contention that the panel members are instructed not to consider any outside material during their deliberations, and that they erroneously “considered” that you would retire as an E-9. 
 
The Board considered your candid admission that you have no good explanation for your behavior that led to your court-martial, and that in retrospect, you now know that your incredible lapse in judgment and professionalism was likely attributed to you not dealing with personal stressors in your life, that you were using the relationship as a means of coping with the stress, and that you understand that you have absolutely no one to blame for what happened but yourself.  As such, your request is based on propriety and clemency grounds. 
 
You further state that you know that the Convening Authority was within his purview to take the action he did.  However, your misconduct that occurred over a short period of time cannot negate the almost 26 years of dedicated service to your country.  Additionally, you argue that your financial loss is grossly disproportionate to the misconduct committed. 
 
The Board, however, substantially concurred with the AO, noting that you were appropriately sentenced to reduction by a court-martial and the Convening Authority approved the sentence after mitigating the rank reduction by one rank.  Additionally, the Deputy Commandant, Manpower and Reserve Affairs, reviewed your case and declined to advance you on the retired list. 
 
With regard to your contention that the panel members believed you would be allowed to retire based on your “high-three” pay calculation, and that they believed that you would be able to receive retired pay as an E-9, the Board concurred with the AO and determined that, even assuming arguendo—but not conceding—that these errors did occur,  your defense counsel documented for the Convening Authority this exact injustice and the Convening Authority mitigated your reduction by one rank to E-6 rather than E-5.  The Board thus determined that you have already received an appropriate adjustment to your sentence. 
 
Moreover, you presented your case to the Deputy Commandant, Manpower and Reserve Affairs, via a letter requesting to be advanced on the retired list.  The Deputy Commandant reviewed the matter and determined that advancement on the retired list was not appropriate in this case. 
 
The Board concurred with the AO and determined that you have provided no evidence that challenges the decision of the Convening Authority and the Deputy Commandant other than your own belief that your years of service should weigh more heavily in the retired grade calculation than your misconduct.  Accordingly, the Board concluded that you failed to provide substantial evidence demonstrating the existence of a probable material error or injustice warranting relief in the form of additional clemency. 
 
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 that you 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,