D E P A R T M E N T O F T H E N A V Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
ELP
Docket No. 1480-99
16 July 1999
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 14 July 1999. 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, your naval record and applicable statutes, regulations
and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
The Board found that you enlisted in the Navy on 29 June 1978 for
four years at the age 19. The record reflects that were advanced
to AMSAN (E-3) and served without incident until 6 December 1979
when you were apprehended by civil authorities on charges of
sodomy and indecent liberties. On 21 February 1980, you were
convicted by civil court of forcible sodomy and indecent
liberties. You were sentenced to a total of 15 years in the
state penitentiary, but the sentences were suspended for a period
of 20 years.
On 22 February 1980, you were notified that you were being
considered for discharge under other than honorable conditions.
You were advised of your procedural rights and waived your right
to representation by counsel and presentation of your case to an
administrative discharge board (ADB). On 6 March 1980, the
commanding officer (CO) recommended that you be discharged by
reason Of misconduct due to the conviction by civil authorities
of an offense involving of sexual perversion. In his
recommendation, the CO stated that the sodomy and indecent
liberties were committed with a four-year old nephew you were
babysitting. The child reported the incident to his parents who
then pressed charges against you. On 24 March 1980 the Bureau of
Naval Personnel directed that a new statement of awareness be
executed since the original statement failed to indicate the
reason for the separation processing. You were re-notified that
you were being processed for discharge under other than honorable
conditions by reason of misconduct due to civil conviction and
sexual perversion. You were advised of your procedural rights
and again waived those rights.
On 22 April 1980, the Chief of Naval Personnel directed discharge
under other than honorable conditions by reason of misconduct and
assignment of an RE-4 reenlistment code. You were so discharged
on 8 May 1980.
Applicable regulations provided that individuals convicted by
civil authorities for an offense which involved moral turpitude
or sexual perversion, or for which the maximum permissible
punishment under the Uniform Code of Military Justice was
confinement in excess of one year, could be administratively
discharged under other than honorable conditions by reason of
misconduct. Regulations also require the assignment of an RE-4
reenlistment code to individuals who are discharged by reason of
misconduct.
In its review of your application the Board carefully weighed all
potentially mitigating factors such as your youth and immaturity
and the fact that it has been more than 19 years since you were
discharged. The Board noted the letters of reference attesting
to your good character; that you received treatment since your
discharge; and your fiancee's letter, who claims she is aware of
your past, but is unwilling to believe you could or would commit
such offenses. The Board concluded that these factors were
insufficient to warrant recharacterization of your discharge
given your conviction by civil authorities of a serious offense
involving moral turpitude. Your conviction reflected negatively
upon the Navy, your command, and yourself. Retention of an
individual convicted of sexual perversion is incompatible with
military standards. The Board noted that you sought and received
treatment after discharge, helped your sister raise her oldest
son, and will soon to be married. However, the Board did not
find these factors sufficiently mitigating to overcome your civil
conviction. The Board concluded that the reason for discharge,
characterization of service, and reenlistment and separation
codes were appropriate and no changes are warranted. Accordingly,
your application has been denied. The names and votes of the
members of the panel will be furnished upon request.
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 and material
evidence or other matter not previously 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,
W. DEAN PFEIFFER
Executive Director
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