DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TRG
Docket No: 6867-06
29 January 2008
Dea
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the United
States Code section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in execu! en considered ,
application on 29 January 2 Our @llegations of error and
injustice were reviewed in accordance with adminig strat sve
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, your naval record and applicable statutes, regulations
and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice,
You enlisted in the Marine Corps for five years on 28 July 1997
at age 18. On 4 August 2000 you received nonjudicial punishment
for disrespect, two instances of communicating a threat,
possession of an unauthorized weapon and underage drinking. A
general court-martial convened on 23 August 2001 and convicted
you of sodomy, indecent exposure, committing indecent acts, and
impersonating a noncommissioned officer while performing in a
pornographic film. The court sentenced you to reduction to pay
grade E-1, forfeiture of all pay and allowances, confinement at
hard labor for three years and a dishonorable discharge. The
confinement in excess of eight months was suspended in accordance
with a pretrial agreement. On 6 November 2002, the Naval
Clemency Board mitigated the dishonorable discharge to a bad
conduct discharge. On 10 May 2005, the U.S. Navy-Marine Corps
Court of Criminal Appeals set aside your conviction of
impersonating a noncommissioned officer but affirmed the findings
and sentence. Upon completion of appellate review, the bad
conduct discharge was issued on 24 February 2006.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your period of good
service and your contentions, in effect, that you were improperly
convicted in violation of Supreme Court precedence concerning sex
between consenting adults. You also contend that your sentence
was too severe given the punishment awarded to women in the Armed
Forces who had posed nude in magazines. The Board found that
these factors and contentions were not sufficient to warrant
recharacterization of your discharge given your conviction by
court-martial of serious offenses. The Board is prevented by law
from reviewing courts-martial and must limit its review to
determining if the court-martial sentence should be reduced as a
matter of clemency. The Board concluded that the punishment
which included a bad conduct discharge was not too severe and a
modification of the court-martial sentence was not warranted.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
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 and material
evidence or other matter not previously 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,
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