DEPARTMENTOFTHE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

AEG
Docket No. 6136-01
16 January 2002

From:
To:
Subj:

Ref:
Encl:

Chairman, Board for Correction of Naval Records
Secretary of the Navy
REVIEW OF NAVAL RECORD OF

(a) 10 U.S.C. 1552
(1) Case Summary
(2) Subject's Naval Record

1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, applied to this Board
requesting that his naval record be corrected by setting aside
the dishonorable discharge of 19 January 1999.
2. The Board, consisting of Messrs.
Novello and Ms.
Hare, reviewed Petitioner's allegations of error and injustice on
15 January 2002 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
evidence of record.
Documentary material considered by the Board
consisted of the enclosures,
statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice, finds as
follows:

naval records and applicable

McPartlin and 

a. Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Petitioner's application to the Board was filed in a timely

manner.

During this period he was advanced to aviation

C . Petitioner first enlisted in the Navy on 15 October 1980.
For nearly sixteen years, he served in a generally excellent
manner.
electronics technician second class (AT2;
disciplinary record.
He also was awarded two Navy Achievement
Medals, three Good Conduct Medals and the Combat Action Ribbon.
His final reenlistment, for five years, occurred on 2 December
1994.

E-5) and had a spotless

d. From 19 to 23 August 1996,

Petitioner was tried by general

court martial (GCM) on charges of rape, burglary and adultery, in
violation of Articles 120,

129 and 134 of the Uniform Code of

@@you grabbed me 

Petitioner's defense was that the
Military Justice (UCMJ).
sexual activity was consensual and initiated by the alleged
victim, and the defense counsel attempted to elicit testimony
that when the woman accused Petitioner of raping her, he
immediately replied,
military judge ruled that this testimony was inadmissible since
it did not fall within the "excited utterance" exception to the
hearsay rule.
Petitioner was then convicted of rape and unlawful
entry and sentenced to a dishonorable discharge, total
forfeitures, reduction in rate to 
ATAR (E-l) and confinement at
hard labor for one year.
authority (GCMCA) approved the sentence.
from confinement on 9 June 1997 and placed on appellate leave the
following day.

On 6 March 1997 the GCM convening

Petitioner was released

However, the

first."

e. On 20 October 1998 the Navy-Marine Corps Court of Criminal
Appeals (NMCCA) approved the findings and sentence and rejected
Petitioner's contentions that the evidence against him was
insufficient to show his guilt beyond a reasonable doubt, and the
"you
military judge erred in failing to characterize the comment 
grabbed me first," as an excited utterance.
On 19 January 1999,
apparently believing that appellate review was complete, the
separation authority executed the adjudged dishonorable
discharge.
However, one day later, the Court of Appeals for the
Armed Forces (CAAF) accepted Petitioner's request for review.
Subsequently, CAAF granted review on the issues decided by NMCCA.

f. In its decision of 14 July 2000, CAAF concluded that the

testimony pertaining to Petitioner's statement, 
first," fell within the excited utterance exception to the
hearsay rule, and should have been admitted.
on to conclude that given the particular circumstances of the
case, the judge's decision to exclude this testimony was
prejudicial.
Accordingly, CAAF set 
In a footnote, the court
sentence, but authorized a rehearing.
noted the government had conceded that NMCCA applied the wrong
standard for factual sufficiency, but deemed the issue moot.
United States v.  

Moolick,  53  M.J. 174 (2000).

as,ide the findings and

"you grabbed me

The court then went

g- The case was then returned for further action in accordance
On 28 November 2000 the GCMCA determined
the unavailability of witnesses,

with the CAAF opinion.
that due to the passage of time,
and the limited punishment that would be available upon a
subsequent conviction, a rehearing was  
Accordingly, the GCMCA dismissed the charges and directed
"all rights, privileges and property" of which
restoration of 
Petitioner was deprived by the findings and sentence of the GCM.
In this regard, Petitioner's record has been purged of all
records pertaining to the GCM conviction, except for a court
memorandum of 23 September 1996 reflecting compliance with the
automatic forfeiture and reduction provisions of the UCMJ.

llimpracticable.ll

h. UCMJ Article 71(c) states, in pertinent part, that a

punitive discharge may not be executed unless and until it is

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Article 75 provides for restoration of all
approved by CAAF.
rights, privileges and property affected by the executed part of
a court-martial sentence that has been disapproved, if no
rehearing is ordered.

' The Department of Defense Financial Management Regulation
However, such time is

(DO;&) sets forth the general rule that time spent in
confinement is not creditable service.
creditable if the sentence is set aside or disapproved.
Additionally, 10 U.S.C. 
5 707(a) and the DODFMR state that time
spent on appellate leave is creditable if an adjudged punitive
discharge is reversed upon appellate review and no rehearing is
held, or the accused is acquitted or not sentenced to a discharge
upon rehearing.

j. In accordance with 10 U.S.C 

5 6330, an individual may

transfer to the Fleet Reserve upon attaining 20 years of active
naval service.
mandatory for an individual such as Petitioner serving in
paygrade E-5.

Applicable directives state that such transfer is

k. 10 U.S.C. 

$ 1176(a) essentially states that a regular
enlisted servicemember who is within two years of attaining
eligibility for transfer to the Fleet Reserve must be retained
until he becomes eligible for such transfer unless he is
discharged under another provision of law such as 10 U.S.C. 
S
1169, which authorizes the separation of an enlisted member prior
to the expiration of enlistment.
1. Within the Naval service,

5 1169 is implemented
1910.4B, which
by Secretary of the Navy Instruction (SECNAVINST) 
states that in the case of a member with over 18 years of active
service, separation may only be directed'by the Chief of Naval
Personnel (CNP).
Further, nothing in this directive or the Naval
Military Personnel Manual would appear to clearly authorize a
separation for cause given the facts of Petitioner's case.

10 U.S.C. 

m. Petitioner's case was referred for an advisory opinion to
In its opinion of 7 January 2002, Pers-0612 recommends

the Office   of Legal Counsel (Pers-0612) of the Navy Personnel
Command.
that Petitioner's record be corrected by setting aside his
dishonorable discharge, granting sufficient constructive service
to establish eligibility for transfer to the Fleet Reserve, and
so transferring him on the date he became eligible to do so.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that corrective action is warranted.
In this
regard, the Board concurs with the Pers-0612 advisory opinion.
Initially, the Board notes that since the GCM conviction and
sentence have been set aside by CAAF, no entries should remain in
the record pertaining to that conviction.
Accordingly, the court

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memorandum of 23 September 1996 should be removed, along with any
other entries reflecting the GCM conviction or sentence.
Turning to the more significant aspects of Petitioner's case, it
is clear to the Board that Petitioner's dishonorable discharge is
improper because it was executed prior to the completion of
appellate review and, more important, since CAAF set aside both
the findings and sentence of the GCM.
Given this favorable
action and the provisions of applicable statutes and the DODFMR,
the four-year period during which Petitioner was either confined
or on appellate leave now counts as creditable service.
Ordinarily, corrective action in a case such as this would
consist of substituting another form of discharge as of the
expiration of Petitioner's last five-year enlistment on 1
December 1999 or at the time the charges were dismissed in
November 2000.
However, since Petitioner's record will now show
that he attained 18 years of creditable active duty on 14 October
1998, the Navy was required to continue Petitioner on active duty
until he reached 20 years of active duty and became eligible for
transfer to the Fleet Reserve, unless he was administratively
separated for cause at the specific direction of CNP.
Given that
no such action was taken, and since grounds may not have existed
for an administrative separation, the Board concludes that the
record should show that Petitioner served on active duty until
first eligible for transfer to the Fleet Reserve and, on that
date, was so transferred.
RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing all
references to the GCM conviction of 23 August 1996.
This action
should include, but not necessarily be limited to, removal of the
Court Memorandum (NAVPERS 

1070/607) of 23 September 1996.
b. That the record be further corrected by removing all

references to the dishonorable discharge of 19 January 1999.
Such action should include,
but not necessarily be limited to,
removal of the Certificate of Release or Discharge from Active
Duty (DD Form 214) issued on that date.

C. That the record be further corrected to show that

Petitioner continued to serve without interruption in the rate of
AT2 until the date he first became eligible for transfer to the
Fleet Reserve and, on that date, was so transferred.

d. 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.

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

naval record be returned to the Board, together with a copy of
this Report of Proceedings, for retention in a confidential file

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with no cross reference being made a

maintained for such purpose,
part of Petitioner's naval record.
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.

ALAN 
ROBERT D. ZSALMAN
Acting Recorder
Recorder
5. Pursuant to the delegation of authority set out in Section 5e
of the Procedures for the Board for Correction of Naval Records
(32 Code of Federal Regulations, Section 
723.6[e]), and having
ensured compliance with its provisions, it is hereby announced
that the foregoing corrective action,
of reference (a), has been approved by the Board on behalf of the
Secretary of the Navy.

taken under the provisions

E-. GOLDSMITH

W. DEAN PF
Executive