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

Docket No: 6463-19 
Ref: Signature Date 

From: Chairman, Board for Correction of Naval Records 
To: Secretary of the Navy 

Subj: REVIEW OF NAVAL RECORD OF FORMER , XXX-XX-, USN 

Ref: (a) 10 U.S.C. § 1552 
(b) SECNAVINST 5420.193 
(c) USD Memo, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations," 25 July 2018 

Encl: (1) DD Form 149 with attachments1 
(2) BCNR Docket No. 4279-17, 29 May 2018 
(3) DD Form 214, 29 June 2015 
(4) Report of Results of Trial by General Court-Martial ICO , MSC, USN, XXX-XX-
12 December 2012 
(5) United States v. Barry, 78 M.J. 70 (2018) 

1. Pursuant to the provisions of reference ( a), Petitioner filed enclosure ( 1) with the Board for Correction of Naval Records (Board) requesting reconsideration of the Board's previous denial of his request to omit his dismissal from the U.S. Navy and to change the characterization of his service to reflect what it likely would have been had the convening authority suspended his adjudged dismissal as recommended by the military judge who presided over his general court­martial in light of Enclosure (5) and other asserted new evidence suggesting unlawful command influence (UCI) in the appellate process. Petitioner asserts injustice in that the approval of his adjudged dismissal by the Secretary of the Navy, which resulted in the deprivation of his retirement and medical benefits valued at well over a million dollars, was tainted by UCI during every phase of his case. After careful and deliberate reconsideration of the Petitioner's application in light of the new evidence presented and the guidance of Reference ( c), the Board found insufficient evidence to establish error or injustice. Accordingly, the Board recommends that relief be denied. 

2. Enclosure ( 1) was reconsidered, along with the new evidence submitted, in accordance with Board procedures that conform to Lipsman v. Sec'y ofthe Army, 335 F. Supp. 2d 48 (D.D.C. 2004). The Board reviewed Petitioner's allegations of error and injustice on 28 July 2020 and,pursuant to its regulations, determined corrective action was not warranted. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval service records, and applicable statutes, regulations, and policies. 


1 Petitioner resubmitted the DD Form 149, dated 25 April 2017, that he had previously submitted and which was considered in BCNR Docket 4278-17, 29 May 2018, along with a letter from his attorney, dated 28 May 2019. 

3. Regarding Petitioner's request for a personal appearance, the Board determined that such an appearance, with or without counsel, would not materially add to its understanding of the issues involved. Accordingly, the Board determined that a personal appearance was not necessary and considered Petitioner's case based on the evidence of record. 

4. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: 

a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. 

b. It is in the interest of justice to review the application on its merits. 

c. Petitioner was commissioned in the United States Navy, and began a period of active duty service on 24 July 1989. Petitioner served as an officer in the Medical Service Corps until his dismissal from the Navy on 29 June 2015 in the rank of captain (0-6). Enclosure (3). 

d. On 2 November 2011, Petitioner was charged with five specifications of violations of Article 134, Uniform Code of Military Justice (UCMJ), by possessing hard drives containing images of child pornography that had been transported using interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). These charges were subsequently investigated IAW Article 32, UCMJ, and on 30 January 2012 the investigating officer found probable cause to support the charges and recommended that they be referred to a general court-martial, but that serious consideration be given to offering the Petitioner non-judicial punishment (NJP) and voluntary retirement. Despite this recommendation and Petitioner's apparent willingness to accept such alternate disposition, the charge and its specifications were subsequently referred to a general court-martial on 21 May 2012 by the convening authority (Commandant, Naval District of Washington (NDW) to a general court-martial pursuant to the recommendation of his Staff Judge Advocate (SJA) made IA W Article 34, UCMJ. 

e. On some subsequent date, an additional charge with two specifications of conduct unbecoming an officer and a gentlemen by possessing and attempting to possess images of child pornography in violation of Article 133, UCMJ, was preferred against the accused. On 16 July 2012, these additional charges were investigated IAW Article 32, UCMJ. The investigating officer, who was a field-grade Marine Corps judge advocate, found probable cause to support the charges. Despite this finding, he specifically recommended that both the original and additional charges and their specifications be disposed of through NJP and administrative action, due primarily to his belief that it would be difficult for the government to prove its case against the Petitioner beyond a reasonable doubt. 

f. By memorandum dated 23 July 2012, the SJA advised the convening authority to refer the additional charge and its specifications to the previously referred general court-martial IA W Article 34, UCMJ. In this memorandum, the SJA specifically disagreed with the recommendation made by the Article 32, UCMJ, investigating officer. 

g. During the pretrial litigation for this general court-martial, the Petitioner moved the court­martial to disqualify the convening authority because this SJA had been unlawfully influenced by the senior prosecutor in the case. Specifically, the Petitioner alleged that the SJA lacked placed the SJA directly subordinate to the commanding officer of this office, who had previously detailed herself as the senior prosecutor for this particular case and who had also previously communicated with the convening authority about the case. The Petitioner asserted that the SJ A's advice rendered contrary to that of the Article 32 investigating officer was unlawfully influenced by the commanding officer, who was also his rater. While the Military Judge called the relationship between the senior prosecution and the SJA a "problem," he ultimately did not disqualify the convening authority or grant any relief pursuant to this motion. 

h. Subsequent to this ruling, the Petitioner entered into a pretrial agreement with the convening authority whereby the latter agreed to dismiss the charge and the additional charge and their specifications and to disapprove any sentence to confinement, while the former agreed to plead guilty to an amended violation of Article 134, UCMJ, for possessing child pornography in violation of Criminal Law Code Ann. § 11-208. This charge carried a lower 
maximum punishment than the charges that were dismissed. On or about 11 December 2012, the Petitioner pied guilty to violating Article 134, UCMJ, in accordance with the terms of the pretrial agreement. After hearing all of the evidence in aggravation, mitigation and extenuation at the sentencing hearing, the Military Judge sentenced the Petitioner to be confined for 11 months and to be dismissed from the Navy. Concurrently with the announcement of this sentence, however, the military judge recommended that the convening authority "give serious consideration to suspending the dismissal awarded by the court." The Military Judge further commented that his recommendation was based upon "the compelling evidence of [the Petitioner's] significant impact on the national security of the United States, including testimony of [ defense witnesses] ... and [Petitioner's] unsworn statement." 

i. By memorandum dated 2 April 2013, the NDW SJA presented his recommendation to the convening authority regarding what action to take on the adjudged sentence. In the memorandum, the SJA specifically informed the convening authority of the Military Judge's recommendation. Despite this recommendation, the SJA recommended that the convening authority approve the sentence as adjudged IAW with the terms of the pretrial agreement. 

j. After considering this recommendation, as well as the record of trial, the results of trial, and a clemency petition submitted by Petitioner's defense counsel dated 26 April 2013 which requested suspension of the adjudged dismissal in accordance with the Military Judge's recommendation, on 30 April 2013 the convening authority approved only so much of the adjudged sentence as provided for the Petitioner's dismissal. All adjudged confinement was disapproved pursuant to the terms of the pretrial agreement. On 26 May 2015, the adjudged dismissal was approved and ordered to be executed by the SECNA V pursuant to Article 71 (b ), UCMJ. On 1 June 2015, the Office of the Judge Advocate General (OJAG) affirmed the findings and sentence IA W Article 66, UCMJ. 

k. Petitioner was dismissed from the Navy on 29 June 2015 in the grade of captain. The narrative reason for his separation listed on his DD Form 214 was "Court-Martial," and he was assigned a separation code of "FFF" and a reentry code of "NIA." Petitioner's dismissal from the Navy resulted in his loss of his military retirement and all associated benefits after almost 26 years of active duty service. 

l. This Board previously considered Petitioner's assertion of error or injustice in BCNR Docket No. 4278-17. In BCNR Docket No. 4278-17, the Board carefully considered the following assertions of error or injustice: (1) the SJA advising the convening authority was not independent and that the non-independence resulted in unlawful command influence; (2) the approved dismissal was contrary to the independent and impartial recommendation of the Military Judge; (3) failure to address the injustice in Petitioner's record would undermine public confidence in the government; ( 4) Petitioner's extraordinary contributions to national security outweigh the approval of the dismissal; (5) the collateral financial impacts of the dismissal are unjust; (6) the financial impact on Petitioner's spouse is unjust; (7) the financial effect of the dismissal may be so excessive as to violate the Eight Amendment; and (8) the removal of the retirement benefits upon discharge from the service may violate the double jeopardy clause. By memorandum dated 29 May 2018, the Petitioner was notified that the Board denied his application for relief after finding insufficient evidence to establish the existence of probable material error or injustice. The Board carefully reconsidered each of these assertions of error or injustice in its present review. 

m. On 5 September 2018, the Court of Appeals of the Armed Forces (CAAF) issued its judgment in the case of United States v. Barry, 78 M.J. 70 (2018), setting aside the findings and sentence of a sexual assault conviction and dismissing the charge and specification with prejudice to remedy the taint of UCI in the post-trial process. This case established that senior Judge Advocates can commit UCI, and that the Deputy Judge Advocate General of the Navy did, in fact, commit UCI when he influenced a convening authority to affirm the findings and sentence of a court-martial about which the convening authority had significant doubts by suggesting that doing so would be detrimental to either the convening authority's career or to the Navy as a whole. 

n. By memorandum dated 28 May 2019, the Petitioner cited the CAAF ruling in United States v. Barry was new and material evidence warranting reconsideration of the Board's previous denial of relief. He drew a parallel between the facts of the Barry case and his own case to suggest that the SJA, and presumably the other junior prosecutors on the case who did not agree with the recommendations for alternate dispositions made in each of the two Article 32 investigations, were improperly influenced by the commanding officer of the NDW RLSO. Petitioner also asserted that new evidence has come to light since the Board issued its previous decision indicating that Petitioner's military appellate counsel was instructed by a senior Judge Advocate in his chain of command that his career would be negatively affected if he raised the issue of UCI in his appeal, and that Petitioner should not got to the Navy Clemency Board. Taken together with his assertions of UCI previously considered by the Board, Petitioner asserted that this new evidence demonstrates that UCI permeated Petitioner's entire case, and as such the consequences of having lost all of his retirement and medical benefits valued at over a million dollars represents a significant injustice. 

o. In his request for reconsideration, Petitioner asks that his dismissal from the Navy be omitted from his records, and that his records be corrected to reflect such other type of discharge that would likely have been issued had the dismissal been suspended as was recommended by the Military Judge who presided over his general court-martial. Petitioner asserts that the Military Judge who heard his case recommended suspension of the dismissal for valid and specific reasons. Petitioner also contends that the convening authority's approval of the dismissal ( as well as the referral of the case to trial) was contrary to all independent and impartial recommendations given in the case, to include the recommendation of the Article 32, UCMJ, investigating officer and the Military Judge. Petitioner claims that the approval of the dismissal was the product of illegally biased advice from the SJA who reported directly to the senior detailed prosecutor, and that the SJ A's biased advice was contrary to law because the SJA was required to be independent. Petitioner again asserts that the resulting financial consequences and penalty associated with the dismissal is excessively unjust. 

CONCLUSION: 

After careful and conscientious reconsideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. 

The Board found that the Petitioner's request for reconsideration largely mirrored his original request for relief that was denied. Although the Petitioner cited to the CAAF judgment in United States v. Barry as new evidence, and made an additional assertion of UCI in the post-trial appellate process, he did not provide any new evidence to support his contentions. The Board found that Petitioner simply failed to provide sufficient evidence to support his claims of UCI or to demonstrate how the precedent established by the Barry case would apply to his own case. 

Although Petitioner offered no new factual evidence to support his assertions, the Board did reconsider its previous finding in light of Barry and the new assertions made in the present petition. In doing so, the Board found the facts of the Barry case to be factually distinct from those in the Petitioner's case. Unlike in Barry, in which the Chief Judge noted that "[i]t is not every day that a general court-martial convening authority begs our forgiveness for his failure of leadership in approving findings he believed he should not have been approved," the Petitioner provided no evidence to establish that the commanding officer of the NDW RLSO influenced the NDW SJA's advice to the convening authority in any way, that the SJA would likely have advised the convening authority in a different manner but for the influence of his rater, or that Petitioner's appellate defense counsel was improperly influenced in his representation of the Petitioner by a senior Judge Advocate. The Board does not question that a senior Judge Advocate can commit unlawful command influence; it simply found no evidence to establish that any senior Judge Advocate did so in the Petitioner's case. In this regard, the Board noted that the Barry Court had the benefit of a DuBay hearing to establish the facts upon which it made its finding of UCI. In this case, the Petitioner asks the Board to imply the existence of UCI based make this leap, the Board likewise was unwilling to make this finding based solely upon the existence of a superior-subordinate relationship absent evidence to improper influence. The Board found the structural organization of the absent evidence of improper influence, insufficient to establish UCL organization of the would undermine public confidence in the military justice system to be overstated. Accordingly, the Board found no error or injustice in the Petitioner's case. 

Absent evidence that the SJA, and therefore by extension the convening authority, was improperly influenced, the Board found no error or injustice in either the SJA's disagreement with, or the convening authority's decision not to follow, the Article 32 investigating officer's advice to pursue an alternate disposition. In this regard, the Board noted that neither the SJ A nor the convening authority were bound by the findings or recommendations of the Article 32 investigating officer. The Board also noted that the Petitioner was charged with serious crimes for which NJP would not normally be appropriate. Further, the Board noted that the Petitioner's decision to plead guilty to a lesser offense obviated the Article 32 investigating officer's concern regarding the sufficiency of the evidence against the Petitioner, which motivated his recommended disposition. 

Likewise, the Board found no error or injustice in the advice of the SJA or the decision of the convening authority not to suspend the adjudged dismissal as recommended by the Military Judge. In this regard, the Board noted that the convening authority was not bound by the recommendation of the Military Judge. It also noted that, given the terms of the pretrial agreement, the suspension of the adjudged dismissal would have essentially permitted the Petitioner to escape all substantive punishment ( except for the collateral consequences of his conviction) for a significant crime that ultimately warranted a sentence of 11 months of confinement and the dismissal despite the substantial mitigation evidence presented during the sentencing hearing, and that the Military Judge would not have known the quantum portion of the pretrial agreement when he made his recommendation. Finally, the Board had no reason to believe that the convening authority did not give "serious consideration" to suspending the dismissal, as recommended by the Military Judge. Given these circumstances, the Board found no error or injustice in the decision not to suspend the Petitioner's dismissal. 

In addition to reviewing Petitioner's case for error or injustice, the Board also applied the guidance provided in Reference (c) to determine whether equitable relief and/or clemency is appropriate in his case. In this regard, the Board considered, among other factors, the Petitioner's acceptance of responsibility for his actions by pleading guilty and the remorse he demonstrated during his court-martial; the Petitioner's claim of UCI permeating his case; the Military Judge's recommendation that serious consideration be given to suspending the adjudged dismissal; the Article 32 investigating officer's recommendation that Petitioner's case be disposed of through NJP and administrative action; the Petitioner's long and distinguished career in the Navy, and the sacrifices that his service would have entailed for both him and his spouse; the evidence of the Petitioner's significant contributions to national security, as referenced by the Military Judge and in the testimony of the defense witnesses during Petitioner's court-martial; and the significant financial impact suffered by both the Petitioner and his spouse as a collateral consequence of Petitioner's dismissal due to the loss of his retirement benefits, which is valued at well over a million dollars. Even considering these mitigating factors in light of the guidance of Reference ( c ), however, the Board determined that equitable relief and/or clemency is not appropriate at this time. In reaching this conclusion, the Board found that the Petitioner was convicted of a serious crime, and his guilty plea removed any potential doubt that he actually committed the crime. The Board also found the sentence adjudged, to include the collateral consequences of the sentence, to be appropriate for the crime Petitioner was convicted of, and believed that the Petitioner has already enjoyed significant relief from the consequences of his conviction due to the terms of his pretrial agreement. Although it found the mitigating circumstances of Petitioner's case to be significant, they did not outweigh the severity of the Petitioner's criminal conduct. Accordingly, the Board determined that the circumstances of the Petitioner's case do not warrant relief at this time. 

BOARD RECOMMENDATION: 

That Petitioner's request be denied; 

That a copy of this report of proceedings be filed in Petitioner's naval record; and 
That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 7 June 2019. 

4. It is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above-entitled matter. 

5. The foregoing action of the Board is submitted for your review and action. 

Executive Director 


SECRETARY OF THE NAVY DECISION: 

Reviewed and Approved Board Recommendatin (Deny Relief)
FEB O9 2021 
Acting