DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

CRS
Docket No: 5149-99
30 August 2000

Your allegations of error and

Marine Corps dated 2 November

The Board

In addition, the Board considered the advisory

Dear
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 30 August 2000.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application,
together with all material submitted in support
thereof,
your naval record and applicable statutes, regulations
and policies.
opinions furnished by Headquarters,
and 18 November 1999, copies of which are enclosed.
also considered your rebuttal statement of 15 February 2000.
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.
concurred with the comments contained in the advisory opinions.
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.
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.

In this connection, the Board substantially

You are entitled to have the

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

Enclosures

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAW ANNEX

WASHINGTON, DC 20380-1775

IN REPLY REFER TO:

1070
JAM2
2 NOV 1999

0 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subi:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

1 .

We are asked to provide an opinion on Petitioner's request  

for upgrade of the characterization of his discharge to

Honorable, and for assignment of a "reentry code" that will not
preclude successful pursuit of a career in military aviation.

.

We recommend that the requested relief be denied.

2 .
analysis follows.

Our

3.

Background

a.

On 12 February 1999, Petitioner received nonjudicial
of‘Article 134, UCMJ,

punishment (NJP) for a single violation 
for fraternizing with a female Navy petty officer while he was a
student pilot assigned to Marine Aviation Training Support
Group, Corpus 
did not appeal.

He was awarded a letter of censure, and

Christi.

b.

On 31 March 1999, the Deputy Chief of Staff for Manpower
M&RA), as the Show Cause Authority for

and Reserve Affairs (DC/S  
the Marine Corps, initiated adverse administrative separation
Petitioner
processing using the  notification 
responded in writing on 14 April 1999, opposing both the 
the notification procedure and the proposed discharge.

procedurd.

use'of

C.

On 15 June 1999, DC/S M&RA recommended to the Secretary
of the Navy that Petitioner be discharged with a General (Under
Honorable Conditions) characterization of service based on his
DC/S
inappropriate relationship with the female petty officer.
M&RA noted specifically that Petitioner's relationship with the
On 23 June 1999, the
petty officer 
Assistant Secretary of the Navy (Manpower and Reserve Affairs)
(ASN(M&RA)) directed Petitioner's discharge with a General
(Under Honorable Conditions) character of service.

pas sexual in nature.

__

Subj:

BOARD FOR CORRECTION

RMER
U.S.

4.

Analysis

a.

With respect to Petitioner's request for assignment of
more favorable "reentry code," we note that, as a commissioned
officer, Petitioner was not assigned a reenlistment code upon
his separation.
nor necessary.

this relief is neither available

Accordingly,

a

Petitioner supports his request for an honorable

characterization of service with essentially four arguments:

b.

one, his discharge was improper because it was not based on an
offense punishable by more than six months of confinement where
the offense was resolved at NJP; two, his discharge was unfair
because it was based upon an NJP that he would not have accepted
had he been charged with sexual fraternization; three, his
discharge was inequitable based upon all the facts and
circumstances of his case; and, four, his discharge was improper
because it was based on a sexual relationship where there was no
direct evidence that the relationship ever progressed to sexual
activity.
warrant granting the requested relief.

None of these arguments, 

singly'or in concert,

C.

The statutorily authorized maximum punishment for

fraternization includes forfeiture of all pay and allowances,
confinement for two years, and a dismissal; this far exceeds the
The fact that Petitioner's command elected
required threshold.
to show leniency by resolving the offense at NJP, rather than by
prosecuting it before a general court-martial authorized to
impose the maximum punishment, is irrelevant.

d.

Petitioner was processed for separation not because he

Accordingly, neither DC/S 

for which
Both authorities were free to conclude, based

received NJP, but because he engaged in an improper relationship
M&RA nor
with a female petty officer.
ASN(MCRA) were obliged to limit their review of Petitioner's
misconduct to the specific allegations of the charge  
NJP was imposed.
upon all available evidence, that Petitioner's fraternization
Moreover, even had Petitioner refused
included sexua
NJP and been acquitted of the offense at court-martial, he still
would have been subject to separation for the underlying
misconduct.
free to conclude by a preponderance of the evidence that
Petitioner engaged in a sexual relationship, notwithstanding  a
court-martial finding that such a relationship was not proven
beyond reasonable doubt.

ASN(M&RA) would still have been‘

In such instance,

) activity.

2

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

MARINE CORPS

e.

Petitioner's generalized complaint that his discharge

was inequitable -- because he committed no other misconduct
during his active service, because the petty officer was not in
his chain of command, because other people committed similar
misconduct in a permissive command environment, and because he
effectively turned himself in -- is unpersuasive.
Petitioner's misconduct disqualified him from holding a
commission is a determination left to  
ASN(M&RA)'s sound
discretion.
who weighed and rejected them.

Petitioner made these same arguments to ASN(M&RA),

Whether

I

)

She

f.

Petitioner correctly asserts that there is no direct

She did not

In her 13 December 1998 statement, the petty officer

evidence that he engaged in sexual activity with the petty
officer.
characterized her relationship with Petitioner as  
"dating."1
also stated that she had engaged in sexual intercourse during
the several days leading up to 13 December.
explicitly state, however, that she and Petitioner had engaged
The 8 January 1999 affidavit given by
in sexual intercourse.
Naval Criminal Investigative Service Special Agent Reed does
assert that the petty officer claimed to have had sexual
That affidavit, however, is not
intercourse with Petitioner.
based upon a first-hand conversation; it merely paraphrases --
imprecisely, in this specific regard -- the 13 December
statement.
Petitioner engaged in a wholly inappropriate relationship with
That statement, combined with the fact that
the subordinate.
Petitioner was the first person the subordinate called in the
middle of the night after her alleged sexual assault, provides
persuasive circumstantial evidence of a sexual relationship
between the two, i.e., that Petitioner was the unnamed sexual
MGRA
partner referred to in the statement.
could fairly conclude that the relationship was sexual-in nature
ASN(MCRA)  could
and could advise 
also reach the same conclusion, and could separate Petitioner

It is clear from the latter statement, however, that

ASN(M&RA) of that conclusion.

Accordingly, DC/S 

t

' We note as an aside that Petitioner's reliance on the 

Ms.
is misplaced.
and argues that its contradiction of the petty officer's sworn

letter from 
Petitioner mischaracterizes the letter as an

__

"affidavit,"
statement renders the latter unreliable.
given by a person subject to prosecution
outweighed by an unsworn statement given
probative value of the letter is further

It does not.
for making a false
nearly four months
compromised by its

3

A sworn statement

complaint is not
later.
intemperate tone.

The

Subj:

APPLICATION

with a General (Under Honorable Conditions) characterization as
a result.

Conclusion.

5 .
recommend that the requested relief be denied.

Accordingly, for the reasons noted, we

Head, Military Law Branch
Judge Advocate Division

#

4

DEPARTMENT OF THE

 

NAV Y

HEADQUARTERS UNITED STATES MARINE CORPS
D

3280  RUSSELL ROA

QUANTICO, VIRGINIA

 

22 

134-5 103

IN REPLY REFER TO:

1741
MMSR-6
18 Nov

99

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BCNR APPLICATION IN THE CASE OF 

FORME

Ref:

(a) MMER Route Sheet of 
(b) JAM-2 Advisory Opinion 1070 of 

9S2p99, Docket No. 5149-99.

2Nov99

Reference (a) requests an advisory opinion on former First

petition to correct his record to change the

Former

characterization of his discharge and his reenlistment code.
2.
authority in accordance with current regulations and policy. He
was not assigned a reenlistment code when discharged.
3. We, therefore, must re
recommend that former Firs
granted favorable consider

was discharged under proper

reference (b) and
petition not be

Head, Separation and
Retirement Branch
By direction of the Commandant
of the Marine Corps

t