Y
DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAW ANNEX

WASHINGTON DC 203704100

ELP
Docket No. 2500-98
14 April 1999

Dears

This is in reference to your
naval record pursuant to the
States Code, Section 1552.

application for correction of your
provisions of Title 10, United

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A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 31 March 1999.
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

Your allegations of error and

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 Naval Reserve on 20 May
1991 for six years as an SN (E-3).
enlistment, you had completed more than two years of active naval
service 
Navy Veterans Reenlistment Advanced Pay Grade Incentive Program.

You were  temporarily advanced to CE2 (E-5) under the

_

At the time of your

The record reflects that you served without incident until
1 December 1993 when a warrant for your arrest was issued for
molestation of two minor girls,
you were sleeping with.
the mother on occasion,
clothed, and you would put your hand inside their panties and
touch their private areas.
admitted to putting your hand inside the panties of one of the
girls.
One girl claimed that when she got in bed with you and
her mother, you touched her "privates," and when you showered
with their mother, both girls would get into the shower and you
would wash their private parts.

the daughters of a married woman
The warrant stated that you baby sat for
the girls would lie in bed with you fully

The warrant went on to say that you

but only one is signed by the

The record further reflects that you entered into a pre-trial
agreement and were charged with two counts of attempted child
The record also shows you
molestation in the third degree.
executed two agreements,
prosecuting attorney and the judge.
unsigned, you stated
"without admitting guilt, I am pleading
guilty because there is a risk of conviction if I proceed to
trial and I want to take advantage of the reduction and the
prosecutor's recommendation."
The second agreement which was
accepted by the prosecuting attorney and the judge, shows that
you pled guilty to the following: "Between January 1, 1993 and
WY 
without a sexual purpose..."
on your plea of guilty to the foregoing charges on 31 January
1994.

31, 1993, I touched CA and EA in an improper sexual way but
You were convicted in civil court

In the first one, which is

On 29 April 1994 you were notified that you were being considered
for discharge under other than honorable conditions by reason of
misconduct due to your conviction by civil authorities of child
molestation, and commission of a serious offense.
You were
advised of your procedural rights and elected to present your
case to an administrative discharge board (ADB).

On 16 May 1994, the court sentenced you to 12 months of
confinement on each count.
six months was suspended and you were placed in a work release
program.
victims compensation fees,
period of 10 years, and refrain from contacting any minor outside
your family under the age of 18 without court approval.

You were also ordered to pay court costs and crime
register as a sex offender for a

However, all confinement in excess of

She was separated from her

You were

when you did some electrical work

Sometime late in 1992 or early 1993,

You appeared before an ADB with counsel on 23 July 1994.
heard testimony to the effect that you met the mother of the
girls you allegedly molested,
at her house in the Fall of 1992.
husband and was in the process of getting a divorce.
also married with two daughters, ages 18 and 14, but were
separated from your wife.
you began seeing this women and a relationship began.
husband, a merchant mariner,
relationship with his wife and that you had taken inappropriate
liberties with his daughters during his visitation with them. He
allegedly put flyers out all over the town that you had taken
over his home, given him a venereal disease, and molested his
children.
He left harassing phone messages on your answering
machine and went to your residence and threatened your wife.
Your lawyer stated that he filed a lawsuit against him, but he
was persistent with the prosecutor's office and charges were
eventually filed against you.
By this time, the girls were
adamant in their testimony and could not be shaken.

apparently learned of your

The ADB

Her

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The lawyer indicated that even though he felt you had a

The lawyer who represented you in the civil case testified that
you did not want a plea bargain and desired a day in court.
However, the charges pending at the time were for child rape and
had the potential for two consecutive prison terms of 8-10 years
each.
He stated that he
solid case, there was a risk of conviction.
encouraged you to take the offer to plead guilty with no felony
As part of the plea
conviction, and ultimately you consented.
agreement, you would be evaluated and treated, if appropriate.
Your lawyer further indicated that although you may not have
committed a crime in the sense of molesting children, you
certainly used very poor judgment in being involved with people
you did not know very well.

The command senior chief testified that your performance of duty
He stated that you had worked with him on
had been exceptional.
more projects than anyone else at the center and if a job was not
completed on the weekend, you often stayed Monday or Tuesday to
finish the job since you owned your own business.
had very limited contact with you socially and little knowledge
of the events and circumstances leading to the ADB proceedings.

He stated he

You testified regarding your military history, Vietnam service,
separation and subsequent reconciliation with your wife, and your
affair of approximately five months.
girl's allegations were false and explained that you pled guilty
to the reduced charges on the advice of counsel because it
appeared to be the only opportunity you had to salvage your
electrical contractor business,
Reserve, and avoid a felony conviction.
work release program you were able continue your job and attend
reserve weekend drills.

retain your status in the Naval
You stated that in the

You asserted that the

After a review of all the evidence the ADB, by a vote of 3-0,
found you had committed misconduct due to a civil conviction and
commission of a serious offense and recommended a general
discharge.
The commanding officer concurred with the ADB
proceedings and recommended your discharge.
the Chief of Naval Personnel approved the recommendation and
directed a general discharge by reason of misconduct and
assignment of separation code  
misconduct which resulted in separation was  
with or assault upon a child. 
17 March 1995.

You were so discharged on

On 13 March 1995,

This code means that the

".--indecent  acts

"GKL."

.."

On 1 August 1996, the civil court allowed you to withdraw the
finding or plea of guilty to the two counts of attempted child
molestation in the third degree and enter a plea of Not guilty.
The court dismissed the charges.

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On 17 August 1998, the Board requested that you submit
"Order
appropriate documentation to show the basis for which the  
of dismissal" was issued, i.e., a clemency action, an impropriety
Additionally,
in the trial, or a specific finding of innocence.
a member   of the Board's staff contacted you by telephone.
However, neither you nor designated counsel have provided the
documentation requested.

the Board carefully weighed
In its review of your application,
all potentially mitigating factors such as your prior honorable
service, Vietnam service, letters of reference, and the letters
written to Navy recruiting officials by the lawyers who
represented you in the civil and ADB proceedings.
particularly noted the  
that you were wrongfully subjected to an ADB due to false charges
brought against you by the civilian legal system, and the charges
You assert that since the charges
were subsequently dismissed.
were dismissed, your discharge is now improper since the basis
for your discharge no longer exists.

"Order of Dismissal" and your contention

The Board

In this regard, the Board noted that you

The fact that the state court apparently

The Board

The Board noted that after

The Board concluded that the foregoing factors and contentions
were insufficient to warrant recharacterization of your discharge
given the serious nature of the charges of which you were
convicted by civil authorities.
reviewing all the evidence, listening to the testimony and
arguments of counsel, the ADB was convinced that you had
committed misconduct.
admitted you were guilty of touching the girls in a sexual way,
in order to escape the full extent of punishment that could be
awarded by the court.
after successful completion of a
allowed you to change your plea,
court-ordered program, and dismissed the charges against you does
not invalidate the reason for your discharge which was for
misconduct due to commission of a serious offense of indecent
acts with a child.
the Board to change the basis for your discharge.
believed that you were fortunate that you were recommended for a
general discharge since most individuals discharged by reason of
misconduct receive discharges under other than honorable
conditions.
compliance with applicable regulations and there is no indication
of procedural errors which would have jeopardized your rights.
The Board concluded that both the reason for discharge and
characterization of discharge were appropriate and no changes are
warranted.
Further, there is no basis for reinstatement once an
Accordingly, your
individual's enlistment contract has expired.
The names and votes of the members
application has been denied.
of the panel will be furnished upon request.

Your administrative separation was accomplished in

The action of a state court does not compel

It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
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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