DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9129-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) lO U.S.C. § 1552 Encl: (1) DD Form 149 w/attachrnents of 12 Sep 19 (2) NCIS Report of Investigation of 3 Aug 16 (3) District Court ltr of 28 Nov 2016 (4) AD SEP Board of 28 Mar 17 (5) District Court ltr of 19 Apr 17 (6) CNP ltr 1910 Ser 00/ 124 of 11 Oct I 7 (7) DD Form 214 of20 Nov 20 17 (8) NPC memo 5420 PERS-832 of 30 Oct 19 (9) NPC ltr PERS-OOJ of 2 Dec 19 (I0) Counsel rebuttal ltr of 23 Mar 20 1. Pursuant to the provisions of reference (a), Petitioner, filed enclosure (I) with the Board for Correction of Naval Records (Board), requesting -(1) retired vice discharged; (2) Certificate of Release or Discharge from Active Duty (DD Form 214) Block 13 reflect two Navy Commendation Medals, seven Good Conduct Medals, and one Southwest Asia Service Medal w/bronze campaign star; (3) Block 17 reflect no vice yes, and (4) Block I 8 reflect continuous honorable active Service from 9 July 1992 -8 June 2016. 2. The Board, reviewed Petitioner's allegations of error and injustice on 24 March 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval records and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts ofrecord 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 regulation within the Department of the Navy. b. On 22 June 2016, the Police Department obtained a search warrant and executed the warrant on 29 June 2016 and Petitioner was arrested and charged with twenty-five counts of violating Criminal Code 18.2-374.1: I (Possession, reproduction, distribution, solicitation, and facilitation of child pornography). See enclosure (2) c. On 28 November 2016, Petitioner agreed to a plea agreement. See enclosure (3) d. On 28 March 2017, the Administrative Separation (ADSEP) Board recommendations See enclosure (4): (1) Board voted 3 to 0, found that preponderance of the evidence does support MILPERSMAN section 1910-142 of misconduct -commission of a serious offense and MILPERSMAN section 1910-144 of misconduct -civilian conviction. (2) Board voted 3 to 0, recommended the Petitioner be separated from the naval service. (3) Board voted 3 to 0, recommended the characterization of separation General (under Honorable conditions). (4) Board voted 3 to 0, did not recommend transfer to the Individual Ready Reserve. (5) Board voted 3 to 0, recommended transfer to the Fleet Reserve in the reduced pay grade of E-6. e. On 19 April 2017, Petitioner pied guilty of possession of images (child pornography) and sentenced to 84 months in prison. See enclosure (5) f. On 17 October 2017, the Acting Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN (M&RA)) approved the ADSEP with a characterization of service of General (under Honorable conditions). See enclosure (6) g. On 20 November 2017, Petitioner was discharged with 25 years, 3 months, and 29 days of active duty service. See enclosure (7) h. On 30 October 2019, the Navy Personnel Command (NPC) provided an advisory opinion to the effect that: Petitioner's case was adjudicated on 17 October 2017 by the ASN (M&RA) to approve ADSEP with a General (under Honorable conditions) as an E-8 for Misconduct (Civil Conviction). ASN (M&RA) adjudication decision was based on case documentation submitted by Petitioner's command in compliance with MILPERSMAN 1910-233 (Mandatory Separation Processing). See enclosure (8) i. On 2 December 2019, NPC, Office of Legal Counsel (OOJ) provided an advisory opinion to the effect that: Petitioner has not demonstrated an injustice. The discretion of ASN (M&RA) to approve or disapprove a transfer to the Fleet Reserve is absolute. The Petitioner pied guilty in federal court to possession of child pornography involving minors below the age of 12 and said images had been trafficked in interstate commerce. As demonstrated by the severity of even the _negotiated sentence, the Petitioner's crime was very serious, and would have been eligible for a dishonorable discharge if it had been prosecuted under the Uniform Code of Military Justice. See enclosure (9) J. On 23 March 2020, Petitioner's counsel provided a rebuttal to enclosure (9) to the effect that: Petitioner's position remains without change; that is, the Board should find that Petitioner was relieved from active duty and retired vice discharged. Request this Board to base its decision on matters of equity and clemency rather than simply on rules and regulations existed at the time were followed. The counsel's rebuttal also stated that NPC took corrective action regarding the Petitioner's awards and medals. See enclosure (I0). CONCLUSION Upon review and consideration of all the evidence of record and matters submitted, the Board determined that Petitioner's request does not warrant relief. The Board noted that Petitioner's assertion that he never received a complete dental examination within 90 days prior to separation, despite the representation in Block 17 that he did receive such dental examination, does not amount to an error or injustice, and fails to overcome the presumption of regularity that Navy officials failed these actions. The Board unanimously agreed with enclosure (9) that the Petitioner's arguments fail to demonstrate that an error occurred or injustice exists. RECOMMENDATION: The Board recommends denying relief 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)), 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. The foregoing action of the Board is submitted for your review and action. JUL O1 2020 Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs); Performing the Duties of the Assistant Secretary of the Navy (Manpower and Reserve Affairs) Pursuant to my authority under Title l 0, United States Code, Section 1552, I approve the recommendations of the Board for Correction of Naval Records as set forth in the reference, and direct denying relief.