DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9932-18 Ref: Signature Date This is in reference to your application of 12 September 2018 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 that 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 21 November 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 and personal statements, together with all material submitted in support thereof, relevant portions of your service records, and applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You were commissioned as an ensign in the Navy Reserve on 14 June 1993 following graduation from the . In June 2002, along with other offenses, you engaged in certain inappropriate sexual acts with your 17-year-old stepdaughter, who was an unemancipated minor. In 2003, you were charged in the Justice Court of , County of , State of , with two counts of “Open or Gross Lewdness.” In the course of the criminal investigation, you admitted to committing the following acts: (a) kissing, (b) licking the buttocks and breasts of, and (c) performing cunnilingus on your stepdaughter, as well as (d) becoming aroused and masturbating in front of your stepdaughter, (e) providing your stepdaughter alcohol, and (f) providing your stepdaughter marijuana. At the time of the misconduct, you were 31 years of age. As part of pretrial negotiations, on 18 June 2003, you agreed to plead guilty to a misdemeanor charge of contributing to the delinquency of a minor. In exchange for your guilty plea, the State agreed to dismiss the remaining charges. You received as punishment a suspended six-month jail sentence, a fine and administrative costs, and a no-contact order with your stepdaughter. Additionally, you were ordered to undergo psychosexual evaluation, and you were ordered to participate in the court’s counseling compliance program until released by the court. On 15 September 2003, the Naval Reserve Personnel Center (NRPC) in forwarded a Report of Misconduct (RM) to Navy Personnel Command (PERS-834) outlining the facts and circumstances underlying your misconduct and your June 2003 conviction. On 2 February 2004, based on the RM, PERS-834 notified you that you were required to show cause for retention in the naval service, and also directed that the Commander, Navy Region , convene a Board of Inquiry (BOI). The PERS-834 letter clearly informed you that the show cause action was initiated based on your: (a) Misconduct as evidenced by your violation of: (1) Uniform Code of Military Justice (UCMJ) Article 133 Conduct Unbecoming an Officer, and (2) UCMJ Article 134 Indecent Acts and/or Liberties with a Child; and (b) Substandard Performance of Duty by: (1) failing to demonstrate acceptable qualities of leadership required of an officer in your grade, and (2) failing to conform to prescribed standards of military deportment. The PERS-834 letter placed you on notice that the least favorable characterization of service that could be recommended was other than honorable (OTH), and it informed you of certain rights in connection with the BOI. On 3 November 2004, a BOI convened in your case. The BOI members unanimously determined that you committed misconduct as alleged, but not substandard performance of duty. The BOI did not specify under which UCMJ Article the members found the misconduct. After its unanimous misconduct finding, the BOI recommended that you be separated from the naval service with a general (under honorable conditions) (GEN) characterization of service. On 25 January 2005, the Chief of Naval Personnel (CNP) forwarded the BOI’s findings to the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN(M&RA)) with a recommendation that you be separated with a GEN characterization of service and assigned a separation code of “GKL” (sexual perversion). Ultimately, on 11 February 2005, the ASN(M&RA) approved your separation and directed that you be discharged with a GEN characterization of service and a “GKL” separation code. The Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD memo). The purpose of the USD memo is to ease the process for Veterans seeking redress and assist the Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD memo notes that “increasing attention is being paid to . . . the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that the “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD memo sets clear standards and principles to guide the BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including any arrests, criminal charges, and convictions. The Board carefully weighed all potentially mitigating factors in your case, such as your contentions that included, but were not limited to, that (a) your discharge, characterization of service, narrative reason, and separation code were inequitable and improper because you contend that naval authorities made clearly erroneous misstatements of law and fact during the processing of your involuntary separation, (b) you never engaged in any form of criminal sexual conduct because your stepdaughter’s age was above the age of consent in both and under the UCMJ, and that any and all sexual contact with your stepdaughter was consensual, (c) the findings worksheet was incorrectly completed, (d) while your actions may have been inappropriate, they were not criminal in nature and did not amount to sexual misconduct under military law because the offense of indecent acts or liberties with a child was factually impossible to commit given the age of your stepdaughter, (e) the CNP’s separation recommendation to the ASN(M&RA) contained clearly erroneous misstatements of law and fact exaggerating your misconduct, and (f) for decades you sailed the high seas providing integral support to the U.S. military, and continue to support the Navy as a contractor, ensuring its ships maintain operational readiness. The Board concluded, however, that these contentions and mitigating factors were not sufficient to warrant any requested relief in your case. The finding of the BOI that you committed misconduct is not invalidated by the fact that the Article 134 offense, indecent acts or liberties with a child, was factually impossible to commit given the age of your stepdaughter. The BOI’s finding of misconduct could have been solely based on the Article 133 offense, conduct unbecoming an officer and a gentleman. This offense is often used as a “catch-all” offense. Conduct violative of this Article is action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer. Unbecoming conduct means behavior more serious than slight, and of a material and pronounced character. It means conduct morally unfitting and unworthy, rather than merely inappropriate or unsuitable misbehavior which is more than opposed to good taste or propriety. Article 133 prohibits conduct by a commissioned officer which, taking all the circumstances into consideration, is thus compromising. To summarize, the BOI could have found that you violated Article 133 by engaging in indecent conduct that dishonored or disgraced you personally and seriously compromised your standing as an officer. Furthermore the BOI could also have found misconduct based on the lesser-included offense (LIO) of the named Article 134 offense—specifically, indecent acts with another (Article 134, ¶ 90, Manual for Courts-Martial, 2002 ed.). This offense is almost identical to indecent acts with a minor, but it is easier to prove because it eliminates the age element and an intent element and is specifically listed in the UCMJ as a lesser-included offense (see Article 134, Part d, ¶ 87, Manual for Courts-Martial, 2002 ed.). Since the indecent acts with another offense is a lesser-included offense, by naming the greater offense in your notification letter, you were given the opportunity to defend yourself at the BOI to all of the elements of this offense. Also, the Board noted that consent is not a defense to this Article 134 offense. The Board did not find any error in the misconduct determination by the BOI, since the BOI members could have found that, the conduct that you admitted to was in violation of either or both of the UCMJ Articles detailed above. Your arguments that you were only found guilty in civilian court of contributing to the delinquency of a minor does not invalidate the BOI or any of the subsequent actions by the Navy. The Board also determined that omitting the specific Article on the findings worksheet for which they found misconduct was an error that was not material in that the BOI members could have listed one or two Articles for which you had notice and an opportunity to defend at the BOI. Regarding your argument that the CNP’s recommendation to the ASN(M&RA) in your case contained clearly erroneous misstatements of law and fact that exaggerated and aggravated your misconduct, the Board found that, while the statement of your civilian conviction was erroneous, the underlying facts that you admitted to were presented without exaggeration. Looking at the precise language in the CNP’s endorsement, the Board determined that you did engage in lewd and lascivious sexual acts with your stepdaughter. You admitted that you engaged in certain sexual acts with her and committed other acts in her presence that were arguably indecent acts under the UCMJ. For you to prevail on this particular issue, you would not only need to show that there was an error, but also demonstrate that it was material. In other words, you must show that there was a reasonable probability that, but for the error, your discharge results would have been different. The Board reasoned that any error in the CNP’s recommendation did not cause prejudice to you, and would not have resulted in any of your requested relief had the language reflected the exact outcome with your civilian conviction. Accordingly, the Board did not find any evidence of a material error or injustice in this application that warrants changing your discharge characterization, narrative reason for separation, separation authority, or separation code. Regarding your request for a reentry code, the Board noted that commissioned officers do not receive a reentry code on a DD Form 214, so your request to change your reentry code to RE-1 is moot. 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, 1/29/2020