Docket No: 8110-20 1244-18 7881-15 2045-14 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER USN, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his reentry code reflect RE-1. 2. The Board consisting of reviewed Petitioner’s allegations of error and injustice on 28 April 2021 and, pursuant to its regulations, determined the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo) (Reference (b)). 3. 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 regulations within the Department of the Navy. b. The Board determined that a personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered Petitioner’s case based on the evidence of record. c. Petitioner entered a period of active duty in the Navy on 13 November 2003. While on liberty, Petitioner was involved in an incident at a bar in On 13 February 2006 Petitioner received nonjudicial punishment (NJP) for Article 128, assault. Petitioner could not refuse NJP because he was attached to or embarked on a vessel. On 6 March 2007 Petitioner plead guilty to simple battery in civilian court for the same misconduct. On 9 March 2007 Petitioner was notified of administrative separation processing by reason of Commission of a Serious Offense (civilian conviction and misconduct), and the least favorable characterization he could receive was a General (Under Honorable Conditions). Petitioner waived his procedural rights and on 20 March 2007 was discharged with a General characterization of service. d. On 4 December 2008 the County Court, Fourth Judicial District issued an order granting Petitioner’s motion to modify his sentence. The order states in pertinent part, “the adjudication of guilt based upon Defendant’s plea of guilty entered on March 6, 2007 is hereby vacated and set aside and a withhold of adjudication is imposed.” e. A “withhold of adjudication” is not a conviction. Petitioner’s adjudication was withheld and [Petitioner] is eligible for expungement. Statute §§ 943.01(2), 943.0585. See also v. McFadden, 772 So.2d 1209 (2000) (holding that a withhold of adjudication is not a conviction). f. Petitioner contends he did not commit battery but acted in self-defense, the RE-4 reentry code no longer serves a purpose, and his post-service conduct warrants clemency. Petitioner further contends the civilian court set aside his conviction and imposed a withhold of adjudication. g. On 19 October 2010 the Naval Discharge and Review Board (NDRB) granted Petitioner relief by upgrading his characterization of service to Honorable and changing his narrative reason and corresponding codes to “Secretarial Authority.” NDRB deferred the reentry code request to this Board. h. On 30 March 2015, 03 January 2017, and 04 April 2018 this Board denied Petitioner relief regarding his request to change his reentry code to RE-1. i. In his most recent application to the Board, Petitioner provided a witness statement dated 14 October 2019 indicating Petitioner acted in self-defense. This percipient witness had not been previously asked for a statement by military or civilian authorities. j. Petitioner provided post-service documentation to include his employment as a DoD law enforcement officer with the Army He further states he is pursuing a commission with the Army and provided 4 character references on his behalf pertaining to the officer program. CONCLUSION: The Board reviewed the application under the guidance provided in Reference (b). Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. In its deliberations, the Board noted Petitioner’s NJP was based on an incident that was also adjudicated by civil authorities and that ultimately, Petitioner was not convicted by the state of . Although Petitioner was found guilty at NJP for the same incident, the Board acknowledged Petitioner could not refuse NJP due to being attached to or embarked on a vessel, and that Petitioner’s command did not question the percipient witness. Applying the provisions of reference (b) and in the interest of justice, the Board determined Petitioner’s request to upgrade his reentry code to RE-1 should be granted. Further, in order to avoid potential negative implications, the Board determined Petitioner should be issued a new DD Form 214. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his reentry code as RE-1. That a copy of this report of proceedings be filed in Petitioner’s naval record. 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 5/17/2021 Executive Director