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


Docket No: 391-19 
Ref: Signature Date

Dear

This letter is in reference to your application of 13 November 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 19 September 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 by you and your attorney in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.

Regarding your request for a personal appearance, the Board determined that a personal appearance by you 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 this case based on the evidence of record.

You enlisted and began a period of service in the Navy on 23 August 2005. On 13 August 2008, you went to non-judicial punishment (NJP) for indecent acts and a failure to obey a lawful order or regulation, all originating from a group sex incident in the barracks. You received as punishment, forfeitures of pay, restriction, extra duties, and a reduction in rank to E-3. In the Uniform Code of Military Justice, within the definition of indecent sexual acts or conduct, the term “indecent conduct” means, “that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.”

After your NJP, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense, as evidenced by your NJP for indecent conduct and an orders violation. You elected your right to present your case to an administrative separation board. On 14 November 2008, your administrative separation board was held. The board members voted 2-to-1 that the preponderance of the evidence supported that misconduct occurred. Despite the finding of misconduct, the board members unanimously voted to retain you in the Navy.

However, on 10 February 2009, you were notified that you were being processed for an administrative discharge by reason of the best interest of the service (BIOTS) as evidenced by the board members overlooking the overwhelming evidence that you admitted you knowingly engaged in sexual misconduct. Given that you had less than six years of service and the least favorable discharge characterization eligible for BIOTS separations was general (under honorable conditions), you were not entitled to an administrative separation board.

On 17 February 2009, your Commanding Officer (CO) forwarded his recommendation to Commander, Navy Personnel Command (PERS) that you be separated with a general discharge. In BIOTS cases, per the Naval Military Personnel Manual Section 1910-704 (MILPERSMAN), instead of PERS, the separation authority (SA) becomes the Assistant Secretary of the Navy (Manpower & Reserve Affairs) (ASN), who is the Secretary of the Navy’s (SECNAV) designated representative.

Within the CO’s recommendation, he specifically noted that:

“Overall,      deficient moral code is not the kind of element I want introduced into the lives of any of my crew members…the severity of the events that transpired brings to light     complete lack of ethical standards and total disregard for the welfare of other people…furthermore, his blatant disregard for command and Navy policies, along with the magnitude of inappropriate behavior and future threat it represents, made it necessary for me to recommend his separation from the Navy…the severity of the offenses has compromised my trust and judgment of    character…this is not someone I want representing the U.S. Navy nor influencing or threatening the lives of other sailors.”

On 17 June 2009, PERS recommended to ASN that you be separated from the naval service with a general discharge. On 24 June 2009, ASN concurred with the PERS recommendation and approved your general discharge. Ultimately, on 17 July 2009, you were discharged from the Navy with a general characterization of service.

The Board carefully weighed all potentially mitigating factors in your case, including your contentions that included, but were not limited to: (a) your CO presented a highly biased and colored report to the SECNAV seeking to undermine the findings of the board, and though he provided the board’s findings, he presented his own biased rendition of the facts, without regard to the testimony before the board; (b) your CO made a highly biased request for your separation under a general discharge, despite the contrary ruling by the administrative board and despite the
fact that you only had six (6) months left until your EAOS; (c) while you did engage in behavior which demonstrated a lack of judgment, maturity and good taste, the board had the opportunity to weigh the entire event, and as well as your entire military record and voted to retain you; and(d) your CO chose to substitute his rigid moral code for the sober assessment by a board of officers, and presented a highly colored, one-sided and biased application to SECNAV, and as a result, the findings of the board were overturned and discarded. However, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. Further, the Board noted that the CO’s separation recommendation, description of the events that transpired, and his opinion of your lack of potential for future service was entirely within his purview and discretion to make. Accordingly, the Board concluded that you received the correct characterization and reentry code based on your circumstances, and that your separation was in accordance with all Department of the Navy directives and policy at the time of your discharge.

Additionally, 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 Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted 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 “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 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.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your serious misconduct, your request does not merit relief.

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,

10/22/2019
Executive Director