DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

SMW
Docket No: 5213-06
28 September 2006

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 executive session, considered your application on 27 September 2006. 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, your naval record, and applicable statutes, regulations, and policies. The Board also considered the advisory opinion from Headquarters Marine Corps dated 7 June 2006 and your response to the opinion.

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

You reenlisted in the Marine Corps on~ 27 April 2002 at age 23 after a prior period of honorable service. On 29 July 2003 you were convicted in civil court of contributing to the delinquency of a minor, specifically, having sex with a 16 year old girl. The court sentenced you to a period of confinement, part of which was suspended. During the period from 5 to 21 August 2003 you were in an unauthorized absence (UA) status when you were serving the sentence of your civil conviction. On 25 September 2003 you received nonjudicial punishment (NJP) for the 16 days of UA and adultery. Your NJP appeal was subsequently denied.

On 23 October 2003 your commanding officer initiated separation action by reason of misconduct due to commission of a serious offense, and recommended an other than honorable discharge. In connection with this processing, you elected to have your case
heard by an administrative discharge board (ADB). On 22 December 2003 the ADE convened and concluded that you had committed misconduct due to commission of a serious offense, and recommended a general discharge. On 30 January 2004 the separation authority approved the ADB’s recommendation and directed a general discharge by reason of misconduct due to commission of a serious offense. On 19 February 2004 you were so discharged. At that time you were assigned a reenlistment code of RE-4, which means that you are neither eligible nor recommended for reenlistment.

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth, period of honorable service, and achievements. The Board also considered your contentions that you were separated from your wife at the time you were charged with adultery, you did not know the age of the girl you had sex with, and you only had one offense. Nevertheless, the Board found that these factors were not sufficient to warrant recharacterization of your discharge, changing the reenlistment code or reason for discharge, given the seriousness of your misconduct. In this regard, you were fortunate to receive a general discharge since most individuals separated due to misconduct are discharged under other than honorable conditions. Regarding your contention that you were separated from your wife at the time of your civil conviction and subsequent charge of adultery, the record shows that you were married when you had sex with a 16 year old girl. Furthermore, concerning your contention that you only had one offense, the record shows that you had one civil conviction and an NJP for two offenses. Your discharge by reason of misconduct due to commission of a serious offense met all requirements established by regulations, and apparently your commanding officer and the ADB found your miscor~duct sufficiently severe to warrant discharge. The Board also noted that you could have been discharged by reason of misconduct due to civil conviction. Finally, the board agreed with the advisory opinion that your reenlistment code was properly assigned. Therefore, the Board concluded that the discharge was proper as issued and no change is 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,

W.	DEAN PFEIFFER
Executive Director