DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

Y

2 NAVY ANNEX

WASHINGTON DC 20370-5100

CRS
Docket No:
14 April 1999

3487-98

From:
To:

Subj:

Chairman, Board for Correction of Naval Records
Secretary of 

the, Navy

L RECORD OF

Ref:

(a) 10 U.S.C. 1552

Encl:

(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the United States Navy, filed an
application with this Board requesting, in effect, that his naval
record be corrected to show that he was not discharged on 20
October 1997.
code be changed.

Further, he requests that his RE-4 reenlistment

consisting of Mr.  

Cali, Mr. Mathews, and Ms.

reviewed Petitioner's allegations of error and injustice

2. The Board,
Madison,.
on 9 February 1999 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

Documentary material considered by

3. The Board, having reviewed all the facts of record 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
regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

C . Petitioner reenlisted in the Navy for three years on 21

October 1994 in the rate of MM1 (E-6) after more than 16 years of
prior active service.

d. On 27 September 1996 Petitioner was arrested by civil

authorities for fondling his 15 year old stepdaughter.
November 1996 he refused further sexual abuse treatment.

On 27

e. In February 1997 both the Case Review Committee and the

Family Advocacy Program substantiated a case of child sexual
abuse against Petitioner.

f. On 16 October 1997 the commanding officer recommended that

The following day the Bureau of

Petitioner's enlistment not be extended due to the continuous
extensions of his civil trial.
Naval Personnel (BUPERS) directed separation on the date his
enlistment expired, 20 October 1997.
that Petitioner receive a general discharge because of his
admission of child sexual abuse to civil authorities, and due to
the lack of time to process him for administrative separation.
Accordingly, Petitioner received a general discharge by reason of
At that time
expiration of term of service on 20 October 1997.
At that time, he had
he was assigned an RE-4 reenlistment code.
19 years, 10 months, and 21 days of active service.

BUPERS also recommended

g* In his application, Petitioner contends that he was

innocent of the allegations of child abuse, and it was unfair of
BUPERS to deny his request for a brief extension to make him
eligible for transfer to the Fleet Reserve.
contends that an administrative discharge board was directed, but
Petitioner's command failed to do so.

Petitioner's counsel

h. An advisory opinion was requested from BUPERS concerning

In reponse, the
the contentions of Petitioner and his counsel.
Enlisted Performance Branch recommended denial of the application
citing the "egregious allegations of the  
"quasi admissions".

victim@@ and Petitioner's

i. A second advisory opinion was obtained from the Office of

The opinion states, in effect, that
the Judge Advocate General.
in accordance with 10 U.S.C. 1176(a), Petitioner should have been
retained on active duty until the date on which he would have
been eligible for transfer to the Fleet Reserve.
recommends that Petitioner be returned to active duty in order to
complete the required active service for transfer to the Fleet
Reserve.

The opinion

j. 10 U.S.C. 1176(a) states, in part, as follows:

(a) Regular members. --A regular enlisted member who is
selected to be involuntarily separated, or whose term
of enlistment expires and who is denied reenlistment,
and who on the date on which the member is to be
discharged is within two years for qualifying for
transfer to the Fleet Reserve, shall be retained on
active duty until the member is qualified for
retirement or transfer to the Fleet Reserve, unless
the member is sooner retired or discharged under any
other provision of law.

2

CONCLUSION:

In this regard, the Board concurs with the advisory

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
relief.
opinion from the Office of the Judge Advocate General that
Petitioner's retention on active duty was mandated by 10 U.S.C.
1176(a).
in ordering Petitioner back to active duty for one month and 9
days, the amount of time Petitioner needs to become eligible for
Given the circumstances, the
transfer to the Fleet Reserve.

that little would be gained

The Board notes, however,

Board concludes that the record should be corrected to show that

Petitioner was not discharged on 20 October 1997 but continued to
serve until the date he first became eligible for transfer to the
Fleet Reserve.
but the actual date will be determined by the Naval Personnel
Command.

This date would appear to be 29 December 1997,

Concerning Petitioner's request for a change in his RE-4
reenlistment code, the Board believes that such a code is
appropriate given the evidence of child sexual abuse.

In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he

was not discharged on 20 October 1997 but continued to serve
without interruption until the date he first became eligible to
transfer to the Fleet Reserve and, on that date, was so
transferred.

b. That no further relief be granted.

C . That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.

d. That any material directed to be removed from Petitioner's

naval record be returned to the Board,
of Proceedings, for retention in a confidential file maintained
for such purpose, with no cross reference being made a part of
Petitioner's naval record.

together with this Report

3

4. 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.

ROBERT D. ZSALMAN
Recorder

ALAN E. GOLDSMITH
Acting Recorder

5. Pursuant  
to.the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a),
has been approved by the Board on
behalf of the Secretary of the Navy.

\

4