DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4930-18 Ref: Signature Date Dear 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 for Correction of Naval Records, sitting in executive session, considered your application on 24 July 2019. 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, and applicable statutes, regulations, and policies. You enlisted in the Navy and began a period of active duty on 4 September 1979. You completed this enlistment with an honorable characterization of service on 29 October 1986 and reenlisted on 30 October 1986. You completed that enlistment with an honorable characterization of service on 19 October 1991 and reenlisted for four years on 20 October 1991. You extended your enlistment on 27 October 1995 for 28 months, and on 24 February 1998 for 19 more months. Your end of active obligated service (EAOS) was 29 September 1999. On 4 March 1999, you were convicted by state authorities of three counts of felony capital sexual battery and sentenced to confinement for three consecutive life terms with no chance of parole for 75 years. On 9 March 1999, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense and misconduct due to civilian conviction. You elected to consult with legal counsel and to present your case to an administrative discharge board (ADB). On 29 March 1999, based on a preponderance of the evidence, the ADB found that you had committed misconduct due to commission of a serious offense and misconduct due to civilian conviction. The ADB recommended that you be discharged with an honorable characterization of service by reason of misconduct due to commission of a serious offense, and with an other than honorable (OTH) characterization of service by reason of misconduct due to civilian conviction. Your commanding officer (CO) concurred with the ADB’s recommendation, and recommended that you not be transferred to the Individual Ready Reserve. On 2 December 1999, the Assistant Secretary of the Navy for Manpower and Reserve Affairs approved the recommendation that you be discharged with an OTH characterization of service by reason of misconduct due to civilian conviction. On 14 January 2000, you were discharged with an OTH characterization of service by reason of misconduct due to civilian conviction. The Board carefully considered your application and weighed all potentially mitigating factors, such as your desire to upgrade your characterization of service and your pre-conviction record of service, as well as your contentions that your 14 January 2000 involuntary administrative discharge for misconduct was in error or unjust because you were improperly separated after your EAOS, and that you should have been voluntarily retired instead because you had 20 years of qualifying active-duty service. The Board, however, concluded that the severity of the offenses for which you were convicted outweighed your pre-conviction service record and your desire to upgrade your discharge. In regard to your contention that you were improperly separated beyond your 29 September 1999 EAOS, the Board noted that, at the time of your discharge in absentia on 14 January 2000, you had already been confined for over 11 months as a result of your civilian conviction and sentence. The Board also noted that, pursuant to section 972(a)(3) of Title 10, U.S. Code, those 11 months of confinement extended your EAOS by a commensurate period, until August 2000. In regard to your contention that you should have been voluntarily retired upon your EAOS because you had 20 years of qualifying active-duty service, the Board noted that, for purposes of transfer to the Fleet Reserve after 20 years of qualifying active-duty service, section 6328(a) of Title 10, U.S. Code, provides that “[t]ime required to be made up under section 972(a) [of Title 10] . . . may not be counted in computing years of service” for purposes of retirement or transfer to the Fleet Reserve. Moreover, even if you had been eligible to transfer to the Fleet Reserve, such transfer requires an approved voluntary request. In this regard, the Board noted that requests received from Sailors convicted of offenses similar to yours are not normally approved. In view of the foregoing, the Board concluded that there is no material error or injustice in your record warranting corrective action. 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 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.