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

Docket No: 1627-20 
Ref: Signature Date 


This 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 26 May 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. 

You enlisted in the Navy and began a period of active duty on 11 June 1998. On 9 May 2001, a child protective order was issued against you.  Subsequently, administrative discharge action was initiated due to misconduct.  After being afforded all of your procedural rights, you elected to have a hearing before an administrative discharge board (ADB).  On 19 September 2001, the ADB unanimously found that you committed child abuse and violated a direct order.  The ADB recommended separation with an under other than honorable (OTH) conditions discharge.  On 8 October 2001, through Counsel, you filed a Letter of Deficiency and requested a new ADB.  On 16 October 2001, your commander denied the request for a new ADB because your board was properly convened and conducted, and you failed to demonstrate a reason for a new board.  Your commander found: the documents in support of a new board were either available or could have been requested, but were not presented at the ADB; you were was not denied the right to call witnesses; the reversal of the civilian court order was not dispositive; your argument that you only “technically” violated the protective order was not persuasive; and the Family Advocacy Program (FAP) records were relevant. 

On 10 January 2002, you were discharged with an OTH characterization of service. 

You request the Board upgrade your discharge to honorable.  You assert that while you were in the Navy you were promoted three times in three years and received a Letter of Appreciation (LOA).  Your performance evaluations illustrate your commitment to the Navy during the hardest and most trying time of your life, which pales in comparison to the hardships you have faced trying to secure meaningful employment.  You claim the 
adjudicated your case and found you innocent of all allegations and that discharging you for violation of a direct order was unjust as punishment (counseling) had already been levied for the offense.  Additionally, you state no acts of homosexuality were proven at the ADB, but you believe biased homophobic opinions and a mere allegation of child molestation prevented you from having a fair hearing, all proof of innocence was completely ignored, and you were denied witnesses.  Lastly, you state that since your discharge, you have stayed happily married to your wife and raised three beautiful children, one of whom is currently on active duty in the Marines.  In support of your petition, you attached:  a letter dated 19 November 2001 from a civilian attorney advising you of the dismissal of your custody case; a court order dated 2 October 2001 vacating the Child Protective order of 9 May 2001; a letter dated 20 September 2001 from the child psychiatrist in your civilian case; a letter dated 29 August 2001 from security firm that stated you passed a polygraph test; a copy of your Page 13 counseling for failure to support your dependents (Retention Warning) dated 5 March 2001; an undated, unsigned statement that read, 
in part:  “there was no malicious attempt to subvert the protective order.”; a LOA dated 31 May 1999; excerpts from your ADB transcript; and copies of your performance evaluations. 

The Board carefully weighed all potentially mitigating factors, such as your record of service and contentions and concluded these factors were not sufficient to warrant a change to your discharge.  The Board noted that your contentions regarding your ADB were addressed by your commander prior to your discharge.  Lastly, the Board noted your post-service accomplishments; however, there is no provision of law or in Navy regulations that allows for recharacterization of service solely due to the passage of time. 

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 you to 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,