DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 RLINGTON, VA 22204-2490 Docket No. 6729-19 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 relevant portions of your naval record and your application, 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 case on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 9 July 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 and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 16 April 2020 and Director CORB letter 1910 CORB: 001 of 27 April 2020 along with your response to the opinions. A review of your record shows that you entered active duty with the Navy in January 1984 and successfully served through July 2011 when you were arrested on suspicion of child pornography. A subsequent search for evidence revealed evidence that you sexually abusing a five-year old girl in a video. As a result, you were indicted and confined in pending trial. The Navy notified you of their intention to administratively separate you for commission of a serious offense on 31 October 2011 and you requested to be placed on the retirement list on 3 November 2011. Eventually, your request was approved resulting in your retirement effective 31 May 2012 at the paygrade of E-8 with an Other than Honorable characterization of service. While you were pending retirement, you plead guilty to engaging in a child exploitation enterprise in federal court on 1 December 2011. Despite your efforts to withdraw your guilty plea, you were sentenced to life in prison on 13 July 2012. Your conviction was affirmed on appeal in 2013. After your sentencing, you were transferred to Texas to await trial for your alleged molestation of the five-year old girl. However, you were deemed not competent to stand trial based on symptoms of Paranoid Delusional Disorder and Post-Traumatic Stress Disorder (PTSD). As a result, your molestation misconduct was dismissed in 2015 after a final competency report indicated you remained incompetent for trial. On 12 March 2018, your motion to vacate your 2011 conviction was denied. The Board carefully considered your arguments for placement on the disability retirement list. Including your assertions that you were not competent when you made your elections for retirement and that you were unfit for continued naval service at the time of your retirement. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions in your case. Specifically, the Board concluded that the preponderance of the evidence does not support a finding that you were eligible for disability processing at the time of your retirement from the Navy. In order to qualify for placement on the disability retirement list, a service member must be deemed unfit for continued naval service due to a qualifying disability condition. Unfitness is defined as an inability to perform the duties of their office, grade, rank or rating due to the disability condition. However, regardless of a service member’s fitness for continued naval service, if a member committed misconduct and was processed for separation that could result in an Other than Honorable characterization of service or punitive discharge, they were ineligible for disability processing in 2012. In your case, you were being processed for commission of a serious offense that qualified for an Other than Honorable characterization of service. Based on this fact, the Board concluded you were ineligible for disability processing based on applicable disability regulations that direct misconduct processing to supersede disability processing. The Board considered your arguments that your exposure to Mefloquine or your PTSD contributed to your misconduct, however the Board found that you were criminally responsible for your misconduct based on the fact your conviction was upheld on appeal. Based on this fact, they concluded you were mentally competent to plead guilty to your misconduct and, therefore, also mentally responsible for misconduct that was disqualifying for disability processing. Based on these findings, the Board found no error with the Navy’s decision not to process you for a disability discharge or retirement. The Board also considered whether as a matter of injustice you should be granted a disability retirement. Even after applying liberal consideration to your case, the Board determined the interests of justice do not support such a finding despite your arguments regarding mitigation of your misconduct due to Mefloquine or PTSD. In reviewing your case, the Board felt you were fortunate to be placed on the retirement list with an Other than Honorable characterization of service. The heinous nature of your misconduct that formed the basis for your conviction and administrative separation processing could reasonably have qualified you for a punitive discharge and loss of all pay benefits, including your military retirement benefits, had you been convicted by a court-martial vice Federal court. As a result, the Board concluded you suffer from no injustice as a result of your current retirement status, paygrade, or characterization of service. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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 issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 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. Sincerely,