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

SJN
Docket No: 06786-07
19 June 2008

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 17 June 2008. 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.

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 enlisted in the Navy on 11 June 1991 at age 19. You served for over 13 years without incident until 30 January 2005, when you were charged by civil authorities for unlawfully engaging in sexual activity with a minor in a lewd and lascivious manner. On 23 August 2005, you pled no contest to a lesser charge of simple battery. You were sentenced to 12 months probation, to pay court cost, complete a substance abuse awareness course, write a letter of apology to the victim and her family, and to have no contact with the victim or her family.

Based on this conviction you were processed for an administrative discharge by reason of misconduct due to civil conviction. On 12 September 2005 you were notified of this pending administrative separation action and elected to consult counsel and have your case heard by an administrative discharge board (ADB).

On 4 November 2005, an ADB, that was bound to find misconduct did take place, due to your No Contest plea, in which you were sentenced as if your were guilty, voted to separate you with an other than honorable (0TH) discharge. However, your commanding officer (CO) did not concur with the ADE recommendation to separate you and forwarded your case strongly recommending your retention in the Navy, and if not retained that you be given a general discharge. Unfortunately, on 9 January 2006, the discharge authority directed that you be separated under other than honorable conditions by reason of civil conviction. You were so discharged on 20 January 2006.

The Board, in its review of your application, carefully weighed all potentially mitigating factors, such as overall record of service, including your Good Conduct and Navy and Marine Corps Achievement medals, and the fact you consented to a polygraph after your ADB. Nevertheless, the Board found that these factors were not sufficient to warrant any change in your discharge given the civil conviction, in which you pled No Contest to battery. 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,

ROBERT D. ZSALMAN
Acting Executive Director

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