DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

AEG
Docket No. 6829-00
8 June  2001

From: Chairman, Board for Correction of Naval Records
To:
Subj: REVIEW OF NAVAL RECORD 

Secretary of the Navy

OF:

Ref:
Encl: 

$j 1552

(a) 10 U.S.C. 
(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 general discharge of 9 September 1999 and showing that he
continued to serve on active duty until the date he was eligible
to transfer to the Fleet Reserve and, on that date, was so
transferred with an honorable characterization of service.
2 . The Board, consisting of Messrs. Morgan, Shy and 
Mazza,
reviewed Petitioner's allegations of error and injustice on 30
May 2001 and, pursuant to its regulations, determined that
partial relief is warranted.
the Board consisted of the enclosures, naval records, and
applicable 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:

Documentary material considered by

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.

C. Petitioner enlisted in the Navy on 4 June 1985 after about

six years of prior active service in the Army.
During the next
ten years he received no disciplinary actions, was advanced to
the rate of yeoman first class (E-6) and received four awards of
the Navy Achievement Medal.
He reenlisted for the last time, for
four years,
for more than three years, receiving excellent enlisted
performance evaluations with individual trait averages  

He then continued to serve well

on 4 August 1995.

(ITA) well

in excess of those required for a fully honorable
characterization of service.

d. On 3 May 1999 the general court-martial convening authority

(GCMCA) referred charges to trial alleging that Petitioner had
committed a false official statement, three indecent acts with a
minor, three instances of indecent language, and a solicitation
to commit an indecent act.
into a pretrial agreement that required him to plead guilty to
two specifications of committing indecent acts in return for
significant limitations on the sentence that could be approved.
Specifically, the GCMCA was required to suspend most punishment
for 12 months, conditioned upon Petitioner's remaining on active
duty and participating in psychological treatment.

On that same day, Petitioner entered

e. On 10 May 1999, in accordance with his negotiated plea, a
military judge sitting as a GCM convicted Petitioner of the two
indecent acts and sentenced him to confinement at hard labor for
89 days, 90 days of hard labor without confinement, forfeitures
of $900 per month for three months,
seaman (E-3) and a reprimand.
However, in accordance with the
pretrial agreement, the GCMCA was required to suspend all
punishment except for 45 days of confinement and the reprimand.
The record reflects that Petitioner was confined from  10 May to
15 June 1999, thus extending his enlistment until 9 September
1999.

reduction in grade to yeoman

f. On 24 June 1999 Petitioner submitted a request to his
My EAOS (expiration of active obligated service) is 

commanding officer (CO)
"to retire at HYT (high year tenure), 
99.
Aug99
and I will extend my enlistment to meet my 
On 28
June 1999 the CO initiated administrative separation action
against Petitioner by reason of misconduct due to commission of a
serious offense.
Two days later, Petitioner elected to consult
counsel and to present his case to an administrative discharge
board (ADB).
On 6 July 1999 Petitioner reiterated his request to
extend his enlistment in order to become eligible for transfer to
the Fleet Reserve.
advocate unfavorably endorsed the request and, on 12 July 1999,
it was disapproved by the CO.

However, on 7 July 1999 the staff judge

retirement.l12

Dee

‘3. On 31 August 1999 the CO faxed a letter to the Commander,
Navy Personnel Command (COMNAVPERSCOM) which stated as follows
concerning Petitioner's request to extend his enlistment:

1 In order to be eligible for a fully honorable discharge at the expiration
of enlistment, an individual's final  
the current enlistment, must be 2.0 or higher.
;anual (MILPERSMAN) Article 1910-304

ITA, compiled from all evaluations during

See Naval Military Personnel

As previously noted, Petitioner's EAOS had been extended to 9 September

1999 to make up for the lost time spent in confinement.
not attain the 20 years of active service necessary for transfer to the Fleet
Reserve until on or about 6 January 2000,
months since all extensions must be in whole months. See MILPERSMAN 1160-040.

thus requiring an extension of four

Accordingly, he would

2

. . 

The pretrial agreement in this case was

(Petitioner) was convicted, in accordance with his pleas,
. indecent acts
at a (GCM) of two specifications of 
with another.
The underlying facts reveal that these were
indecent acts with his 10 year old step-daughter.
These
acts included the accused being naked in front of his step-
daughter, naked massages of the buttocks and other acts.
After a long and drawn out pretrial process, a pretrial
agreement was reached between the parties to relieve the
victim from further trauma in this case and to prevent a
very costly trial.
in no way meant to guarantee (Petitioner) the ability to
retire.
Upon arrival at our command after completion of his
confinement sentence, (Petitioner) requested to extend his
current enlistment to the 20 year point in order to retire.
Mandatory administrative separation processing is required
in cases of deviant sexual behavior.
Petitioner was notified of this command's requirement and
intention to separate him for
"Misconduct+ommission of a
Serious Offense" vice allowing him to retire 
(T)his
command was not the convening authority in this case and
had to wait to obtain the necessary information from trial
counsel and convening authority in order to adequately
represent the government's interests at an (ADB),
especially considering the scope of the issues and the
emotionally charged topic.
complete (Petitioner's ADB) and receive separation
authority prior to the expiration of his current obligated
service.
The command requests that (Petitioner's) requests to extend
his enlistment and retire be denied and that he be
separated at his EAOS, which is 9 September 1999.
h. On 1 September 1999 the Head of the Enlisted Performance

This command was not able to

Consequently,

. .. 

Branch (Pers-832) replied by message for COMNAVPERSCOM as
follows:

. 

If he desires to extend enlistment,

of390 days) for administrative separation

. Agreement to Extend Enlistment and execute the

(Petitioner) is permitted to voluntarily extend enlistment
(maximum 
processing.
complete
following (page 13) entry:
"1 understand that by
voluntarily extending my enlistment, I could be
administratively separated with a misconduct discharge, I
would lose all benefits under the Montgomery G.I. Bill and
eligibility for separation 

(MEMBER SIGNATURE)."

(DATE):

pay."

3 An individual's enlistment may not be involuntarily extended for the
purpose of administrative separation action.
83, an individual may voluntarily extend an enlistment for that purpose. See
MILPERSMAN 1910-208.

However, upon approval of  

Pers-

If (Petitioner) does not want to extend his enlistment
prepare (page 13) entry in (his) service record which
states that (he) is not to be extended, reenlisted or
recalled to active duty without the express consent of
COMNAVPERSCOM (Pers-832). Separate (Petitioner) at EAOS and
assign (reenlistment) code RE-4.
i. There are two page 13 entries in the record dated 2

September 1999.
One entry states that Petitioner is not to be
extended, reenlisted or recalled to active duty without
permission of COMNAVPERSCOM,
and the other states that he will
receive a general discharge due to the court-martial conviction.
On 7 September 1999 Petitioner's command sent a message to 
832 which stated that "(Petitioner) verbally elected  
discharge at his EAOS.
(the page 13) which is on file in (his) service record."

Pers-
(He) refused to elect in writing and sign

.
. . 

' The Certificate of Release or Discharge from Active Duty

(DD'Form  214) in the record reflects that Petitioner was
voluntarily separated 4 on 9 September 1999 with a general
discharge by reason of completion of required active service. At
that time, he had 19 years, 8 months and 3 days of active
service.
separation pay.

The record indicates that Petitioner did not receive

’

k. Department of Defense 

Di,rective (DODDIR) 1332.14 of 21

The regulation

"on the basis of numerical scores

December 1993 sets forth binding guidance for enlisted
administrative separations in the armed forces.
states that an individual separated at the expiration of
enlistment will receive an honorable discharge unless a general
discharge is warranted
accumulated in a formal,
conduct and performance on a regular 
original DODDIR 1332.14 was originally published in the Federal
Register, the sectional analysis stated that this provision
should be read to authorize a general discharge 
on a formal rating 
Secretary of the Navy Instruction (SECNAVINST) 
virtually identical to that in the current DODDIR 
However, the governing articles in the Naval Military Personnel
Manual (MILPERSMAN) indicate that factors other than the 
be 
In such a situation, the courts have held that

The corresponding provision in
1332.14.7

Servicewide rating system that evaluates
In 1982, when the

"only when based
1910.4B is

considered.8

system.tl6

basis.l15

ITA may

(BUPERSINST) 1900.8, Part 4 of enclosure (2).

Had

"KBK." Such a code
See Bureau of Naval

 

"JBK" would have

.

4 Block 26 of the DD Form 214 shows a separation code of
is assigned when an individual is voluntarily separated.
Personnel Instruction 
Petitioner's discharge been deemed involuntary, a code of
geen assigned. Id., at Part 3 of enclosure (2).
DODDIR 1332.14, Attachment 1 of Enclosure 3,  

'II 1.1.2.

t 47 Fed. Reg. 10163, 10164 (1982).

SECNAVINST 

1910.4B, Part 1 of Enclosure 

(2), 

¶I A.2.

8 MILPERSMAN 1910-104 and 1910-304

4

the directive from the highest authority will prevail, unless a
lower source provides greater rights for the 

individual.g

1. SECNAVINST 

1910.4B states that the Chief of Naval

Operations is the separation authority for individuals
involuntarily separated after more than 18 years of active
service, but permits 
of Naval Personnel  
delegation authority.

The MILPERSMAN implements this

thisl$uthority to be delegated to the Chief

(Cyf).

pay.12
one-

m. 10 U.S.C. 

pay.13
1160.5C states that

Chief of Naval

5 1174(b) states that a regular enlisted
servicemember with between six and twenty years of active
service, who is involuntarily separated or denied reenlistment,
is entitled to separation pay unless the service secretary
determines that the circumstances of the discharge do not warrant
In the naval service, this statute is implemented by
such pay.
1900.7G.
SECNAVINST 
This regulation states that an individual
discharged due to misconduct is ineligible for separation 
The regulation also limits an individual who is eligible for
separation pay but
"not fully qualified for retention," to 
half the normal rate of separation 
Operations Instruction (OPNAVINST) 
individuals who do not meet minimum eligibility criteria for
reenlistment will be assigned the reenlistment eligibility
classification of 
which means they are not eligible for
reenlistment.14
individuals convicted by general court-martial within a year of
the expiration 
classification.
n. 10 U.S.C. 
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
of qualifying for  
. shall be retained on active duty until the member is
. 
qualified for  
unless the member is sooner retired or discharged under any
other provision of law.

. transfer to the Fleet Reserve
. transfer to the Fleet Reserve  

S 1176(a) states, in pertinent part, as follows:

This instruction goes on to state that

y$ enlistment must receive such a

~~RE-4,l~

.
. . 

. . 

. . 

. 

This provision of law applies only to individuals separated by
reason of expiration of term of service since other

9 United States v. Lopez,
 
M.J. 484, 485 (1998); See also  Gilchrist 

M.J. 39

35 

(CMA 1992);

United

 
States,
v. United 33

States

v. Davis, 47
Fed.Cl. 800-01

1910.4B, Part 6 of Enclosure 

(2), 

1 A.3.

3 

9m.

SECNAVINST 
MILPERSMAN 1910-706.
SECNAVINST 
1900.7G, 
Id.,
I[ 8a.
OPNAVINST 
Id., at Enclosure (2).

1160.5C, 

I[ 6e.

"other provision

administrative separations are authorized by an 
of 

law," specifically, 10 U.S.C. 
o. The Federal courts have held 

S 1169.

thatIt resignation or

However,

This presumption

alternatives.17

retirement is presumed to be voluntary.
endures even if the individual is forced to choose between two
if an individual can show
unpleasant 
that a government representative either intentionally or
unintentionally provided misleading or deceptive information, and
the individual justifiably and in good faith relied on the
information to his detriment, the 
izsignation or retirement will
be deemed involuntary and invalid.
A mere failure to provide
information unless an individual has been misinformed, and the
agency has an obligation to correct the 
The foregoing
test should be an objective inquiry and not one grounded in
either the 
intentions.
determine whether a discharge from the military is 

voluntary.21
P* If a military discharge is found to be improper or unjust,

The courts have used the foregoing analysis to

$Fdividualls perceptions or the government's

the record should normally be corrected to show that the
individual completed the last period of obligated 
However, the courts have authorized a correction board to
backdate a discharge and deny such constructive service if
backdating "places the claimant where he would have been without
the improper 
However, a correction board's action
to deny 
speculation.
a correction in favor of the individual, and never against
him.25

Additionally, such a board may only recommend

constzyctive  service must not be based on 

discharge.l123

service.22

error.lg

"mere

16 Christie v. United States, 518 
yyited  States, 28 

Fed-Cl. 580, 585 (1993).

F.2d 584, 587 

(Ct.Cl. 1975); Bergman v.

Sammt v. United States,

780 

F.2d 31, 33 (Fed. Cir. 1985);  Clifton v.

yzited  States, 31 

Fed.Cl. 593, 597-98 (1994).

Scharf v.

Department of the Air Force,

710 

F.2d 1572, 1575 (Fed. Cir.

F.2d 937, 942

Gaudette v. Department of Transportation, 832 

1983); Covington v. Department of Health and Human Services, 750  
Fed. Cir. 1984);  Colon v. United States, 32  
19
1987).
20 Taylor v.
% 
United States, 68  
Eates,  
433 (Fed.Cir. 1985);   Thomas v. United States, 42  

(Fed.Cl. Oct. 31, 2000).

Bray v. United States,

United States, 591 

United States, 185  

F.2d 688, 692 

1575.
Tippet v.

F.2d 1383  

99-958C  

515 

No.

F.3d 1317, 1321 (Fed. Cir. 1995);   Carmichael v. United

F.3d 1250, 1255 (Fed. Cir. 1999);  Adkins v.

Fed.Cl. 481, 490 (1994).

F.2d 1256, 1258 

(Fed.Cir.

(Ct.Cl. 1975);   Maier v. Orr, 754

 

F.2d

Fed.Cl. 449 (1998).

(Ct.Cl. 1979); Scharf, 710 

F.2d

Denton  v.
509 

United  States, 204 
F.2d 1150, 1156 

States,
ermissible if it would rest on absurd premises).
34
25 Doyle v.

United States,
United States,

Cl.Ct. 727,

213 
599 

F.2d 984 

Carter v

.

731 (1977) (order).

(Ct.Cl. 1979).

Ct.Cl. 188, 200 (1974);  Cf. Carter v. United

(Ct.Cl. 1975) (denial of constructive service

6

q- An individual such as Petitioner is entitled to an ADB if
he is facing discharge by reason of misconduct due to commission
When
of a serious offense as evidenced by indecent 
considering the case of someone such as Petitioner who has been
iF7bound by the conviction
convicted by court-martial,
and may not enter a contrary
Since Petitioner had
over 18 years of active service, had an ADB recommended him for
suspended or 
approved by CNP.
may disapprove such a recommendation and direct 

separation.2g
r. In an attachment to Petitioner's application, his counsel

unsycpended separation, such action could be

Even if an ADB recommends retention,

the ADB 
finding.

explained as follows his client's actions after the Pers-832
message of 1 September 1999:

assault.26

SECNAV

. 

. 

. 

. 

. As the  

(Petitioner) was required to execute a statement that would
have permitted his separation from the Naval service with a
misconduct discharge and that he acknowledged that he would
lose all benefits under the Montgomery G.I. bill and
eligibility for separation pay (and, presumably, retired
. message was not responsive to the
pay) 
request he had made---to extend his enlistment to retire,
(Petitioner) took no action and refused to sign any entries
relating to his discharge.
S . Counsel then goes on to cite 

Counsel further contends that Petitioner's

S 1176(a) for the proposition
that Petitioner's discharge was improper and he should have been
retained on active duty until he was eligible for transfer to the
Fleet Reserve.
discharge was involuntary and therefore improper because it was
approved only by Pers-832 and not CNP.
since Petitioner's evaluations were satisfactory and he was
separated upon completion of required active service, a fully
honorable characterization of service was required.
counsel states that given Petitioner's length of service and
since he was denied further service, he should have received
separation pay upon his involuntary discharge.

Counsel also avers that

Finally,

t. The Board received an advisory opinion and legal analysis,
dated 6 April 2001, from the office of the Judge Advocate General
(JAG).
ITA,
Petitioner should have received an honorable discharge.
In this
regard, JAG essentially states that the guidance in DODDIR
1332.14 and SECNAVINST 

JAG agrees with counsel that based on the final 

1910.4B which requires such a

This article also states that separation processing

26 MILPERSMAN 1910-142.
is mandatory in such cases, as noted by the CO in his letter of 31 August
1999.
27 MILPERSMAN 1910-514
28 Supra,   note 10.
2g MILPERSMAN 1910-706.
aware that in actuality,
Secretary of the Navy for Manpower and Reserve Affairs 

Based on its review of other cases, the Board is
SECNAV has delegated this authority to the Assistant

(ASN/M&RA).

.7

characterization 
indicate that the 

l~trumpsl~ those sections of the MILPERSMAN which
ITA is not determinative.

U. JAG also concludes that since Petitioner was offered the
opportunity to extend his enlistment and declined to do so, he
S 1176(a) only applies to
was voluntarily separated.
individuals who are involuntarily separated, the sanctuary
provisions of the statute did not apply and Petitioner's
discharge was proper.
JAG elaborates on this conclusion as
follows:

Since 

1176[a])  creates a 

($ 
protecting them form being "selected" for involuntary
separation 
when a member voluntarily left active service at EAOS
(expiration of active obligated service).

"sanctuaryI' for enlisted members,
the statute would not apply

. Obviously,

. . 

. 

and would have been

. Petitioner was within two years of qualifying for

. 
transfer to the Fleet Reserve,
protected by the sanctuary provisions of the statute if he
had been selected for involuntary separation.
It is
plainly clear that Petitioner was not "selected" for
involuntary separation 
opportunity to extend his enlistment, it is clear that his
extension request was not denied.
sanctuary provisions of the statute never applied to
Petitioner.

(B)ecause  he was offered the

Accordingly, the

. .. 

. 

. 

processingI' was not incorrect  

. (T)he offer to extend Petitioner's enlistment
. (T)he sanctuary provisions of the statute do not

. 
afforded (him) the same protection offered by the statute
. 
preclude administrative separation.
As such, the response
by Pers-832 authorizing an extension for  
separation 
Petitioner extended his enlistment and been retained after
administrative processing,
he would have been entitled to
remain on active duty until such time as he qualified for
transfer to the Fleet Reserve . . .
No evidence indicates
that Petitioner's decision not to extend his enlistment was
anything other than a voluntary one.
requirement in the statute,
to counsel Petitioner that, if retained after
administrative processing,
retention until he was eligible for transfer to the Fleet
Reserve 

or any applicable regulation,
he would be eligible for

t'administrative

There was no

. Had

. . 

. 

. 

.

JAG goes on to state that if the Board believes Petitioner was
entitled to sanctuary under 
action would consist of allowing him to return to active duty and
complete 20 years of active service,
the record to show completion of such service. In this regard,

S 1176(a), appropriate corrective

instead of a correction to

8

JAAG opines that the latter course of action would provide
Petitioner with 

windfall.~~

'Ia 

tj 1176(a).

V. Petitioner's counsel responded to the advisory opinion by

letter of 10 May 2001, in which he continues to contend that
Petitioner's separation was barred by 
lines, counsel points out that Petitioner was within two years of
qualifying for transfer to the Fleet Reserve and, on two
occasions, requested an extension of his enlistment for a
sufficient period to establish eligibility to be so transferred.
Counsel further notes that there is no provision in law or
regulation which permits an extension for administrative
Finally, counsel states that Petitioner's
separation processing.
separation violated the pretrial agreement since its purpose was
to avoid separation, and virtually all punishment was suspended
for twelve months to permit him to participate in psychological
treatment for his problem.

Along these

Although

As JAG notes in its advisory opinion,
it was proper and should not be
On the other hand, if the discharge was involuntary,

CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that partial relief is appropriate.
there is no merit to Petitioner's request to set aside his
discharge and show sufficient constructive service for transfer
to the Fleet Reserve, the record should be corrected to show that
he was involuntarily discharged with an honorable
characterization of service.
In determining whether Petitioner's discharge should be set
aside, the Board must first decide whether that discharge was
voluntary or involuntary.
if the separation was voluntary,
disturbed.
there was noncompliance with 10 U.S.C. 
consideration should be given to voiding the discharge and
establishing Petitioner's eligibility for transfer to the Fleet
Reserve.
After carefully considering all of the facts and
circumstances, the Board believes that although Petitioner's
discharge was deemed voluntary the time of its issuance it was,
in fact, involuntary and thus constituted a violation of 
1176(a).
In reaching this decision, the Board initially notes that on two
occasions prior to his discharge,
enlistment be extended for a sufficient period to attain 20 years
The command
of active service and transfer to the Fleet Reserve.
denied these requests but guidance was later sought, and was
received from Pers-832 in its message of 1 September 1999.
This
message denied Petitioner's request and authorized only a 90 day
extension for administrative processing--an insufficient period
for Petitioner to attain 20 years of active service.
The message
also directed that Petitioner be informed that if he elected such
an extension and was separated due to misconduct, he would lose

Petitioner requested that his

S 1176(a) and

S

9

"Hobson's

Clearly, such reliance was

NAVPERSCOM+he

From counsel's submissions and the material of

Along these lines, the Board rejects the contrary

eligibility for separation pay and benefits under the Montgomery
G.I. Bill.
record, the Board believes that Petitioner was so informed. It
also very much appears to the Board that Petitioner relied on the
information in the message when he decided to forego such an
extension and be discharged.
reasonable since it came from a representative of 
office responsible for the Navy's personnel matters.
If the Pers-832 message simply gave Petitioner a 
choice" of two distasteful alternatives, such a choice would not
render his discharge involuntary.
However, the Board believes
that the message was actively misleading.
It implied, although
it did not actually state, that he was not entitled to be
extended to attain eligibility to transfer to the Fleet Reserve
§ 1176(a), just the opposite was true.
when, in accordance with  
Given the fact that on more than one occasion Petitioner clearly
and specifically requested such action, the Board believes the
Navy had an obligation to inform him of the provisions of that
statute.
conclusion in the JAG opinion.
the extension proposed by Pers-832 would have carried him to 20
years of active service.
not preclude administrative separation processing for misconduct.
Clearly, if Petitioner had voluntarily extended his enlistment in
S 1176(a), administrative separation action could
accordance with  
have.continued and might have resulted in discharge prior to his
attaining 20 years of service.
JAG also points out that had such
action resulted in retention,
covered by the statute.
However, he was never so advised and had
no reason to be aware of that fact.
The message was also misleading concerning Petitioner's
eligibility for separation pay.
In stating that if he
voluntarily extended his enlistment and was discharged for
misconduct, he 
. eligibility for separation 
Pers-832 implied that by foregoing the proffered extension and
electing separation, he would retain this eligibility. Of
course, such was not the case since the applicable statute and
implementing directive did not permit the award of separation pay
to Petitioner since his separation was 
In fact,
Petitioner was not going to receive separation pay no matter what
course of action he chose.
Since his discharge on 9 September
1999 was deemed voluntary,
no such payment was made.
If he had
extended his enlistment,
reaching.the 
he had attained 20 years,
Fleet Reserve and received retainer 

a discharge for misconduct prior to
he would have been transferred to the

The Board might agree with JAG if
$ 1176(a) does

JAG correctly notes that 

20-year point would have made him ineligible, and if

"would lose

. 

. 

pay,"

Petitioner then would have been

l~vo1untary.l~

pay.30

30 The advice in the message pertaining to the loss of eligibility for
Montgomery G.I. Bill benefits was also erroneous,
since there is no indication in the record to show that Petitioner was a
participant in that program.

but apparently irrelevant

10

In short, the Pers-832 message makes it appear that Petitioner
had little to gain and everything to lose by extending when, in
Had he been given the
actuality, exactly the opposite was true.
opportunity to extend his enlistment for the four months
necessary to establish eligibility for transfer to the Fleet
S 1176(a), he did run the risk of being
Reserve as envisioned by 
discharged under other than honorable conditions for misconduct.
However, even if that eventuality came to pass, resulting in no
separation pay and no Fleet Reserve eligibility, he would have
been in essentially the same position as he was when he elected
On the other hand, if he extended, there was
to be discharged.
always the possibility, however remote, that the ongoing
administrative separation process would result in retention and
sufficient service for transfer to the Fleet Reserve.
Accordingly, the Board believes that Petitioner's discharge was
5 1176(a) precludes such a discharge in the
involuntary.
case of an individual such as Petitioner with over 18 years of
However, this conclusion does
active service, it was improper.
not end the Board's inquiry since another issue must be resolved,
specifically, does the evidence indicate that even without the
improper discharge, Petitioner would have been in about the same
situation?
Put another way, even if Petitioner had been extended
in accordance with his request and in compliance with 
S 1176(a),
would he have been discharged by reason of misconduct before
attaining 20 years of active duty?
The Board believes the answer
to this question is yes.
In reaching this conclusion, the Board first notes that
Petitioner was convicted by GCM of two especially reprehensible
indecent acts, committed on his young stepdaughter.
These acts
could have resulted in a sentence of up 
confinement and a dishonorable discharge.
military judge did not impose anything resembling such a severe
sentence, the Board emphatically rejects the notion that the
judge's leniency or the terms of the pretrial agreement indicated
an expectation that Petitioner would not be subject to
administrative separation.
In fact, since part of the pretrial
agreement was conditioned upon his retention on active duty for
12 months; it appears that the parties to the agreement realized
that he might not be retained.
Additionally, had separation processing continued, an ADB would
have been bound by the finding of the GCM that Petitioner had
committed misconduct.
A recommendation for retention by the ADB
would have been extremely unlikely given the nature of
Petitioner's offenses and the fact that processing for separation
was mandatory.
The Board realizes that mandatory processing does
not mean mandatory separation,
retention in such a case.
individuals such as Petitioner for separation indicates that the

However, the requirement to process

and an ADB may still recommend

Since 

tFl10 years of

Although the

31 Manual for Courts-Martial, United States,  pt. IV, 

¶I 

90e (1998).

11

may override the recommendation

drafters of the MILPERSMAN view their continued service as a
matter of grave concern.
Even if an ADB recommended retention, that recommendation is not
the Assistant Secretary
binding since SECNAV or his alter ego,
for Manpower and Reserve Affairs,
Whether an ADB recommended separation or
and direct discharge.
not, the Board believes that the discharge authority, either CNP
or SECNAV would surely have directed Petitioner's discharge. In
coming to this conclusion the Board is mindful of Petitioner's
many years of good service and how close he was to attaining
However, just
eligibility for transfer to the Fleet Reserve.
because he escaped severe punishment at the court-marital does
not in any way mean that the administrative process would have
resulted in an equally favorable outcome.
Based on the foregoing, the Board believes that even if
Petitioner's enlistment had been extended for four months to give
him the opportunity to attain 20 years of active service and
transfer to the Fleet Reserve, he would have been discharged for
misconduct during this four-month period.
However, the Board
cannot backdate a discharge by reason of misconduct to the actual
date of Petitioner's discharge,
or to some other appropriate date
during that period, because such a correction to the record would
be unfavorable and thus impermissible given the fact that the
record now shows a discharge at the expiration of enlistment.
The Board also considered leaving Petitioner's record as it is.
However, since the record now reflects a voluntary discharge and
the Board is convinced that the separation was, in fact,
involuntary,
The Board is thus faced with a conundrum of reconciling
Petitioner's improper discharge with the windfall that would
accrue by setting aside the discharge and granting sufficient
constructive service to allow transfer to the Fleet Reserve.
After careful consideration, the Board concludes that the best
course of action is a correction to the record to show that the
discharge of 9 September 1999 was involuntary and not voluntary.
The Board is aware that such action could be viewed as violations
of 
separation be approved by CNP.
However, the Board believes the
corrective action is nonetheless appropriate given the fact that
it puts Petitioner in a more favorable situation than he was
The action is beneficial because, given his
before the action.
length of service and reason for separation, it will entitle him
However, since the court-martial conviction
to separation pay.
one-
rendered him ineligible for reenlistment, he is limited to 
half the normal amount of such pay.
The Board completes its analysis of this case by resolving an
issue about which there now appears to be little, if any,
dispute.
Given counsel's contention, the conclusion of the JAG
advisory opinion, and the pertinent regulations and case law, it
is clear that since Petitioner was separated at the expiration of

S 1176(a) and the MILPERSMAN requirement that such a

inaction is an unsatisfactory option.

12

his enlistment and his final 
discharge was improper and should be changed to an honorable
discharge.

ITA was satisfactory, the general

RECOMMENDATION:

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

was involuntarily separated on 9 September 1999 with an honorable
discharge instead of the voluntary general discharge actually
issued on that date.

b. That the record be further corrected to show that upon his
Petitioner was authorized one-half

discharge on 9 September 1999,
separation pay.

C . That no further relief be granted.
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,
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

4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

and that the foregoing is a true and

ROBERT D. ZSALMAN
Recorder

ALAN E.  
Acting Recorder

GbcDSMITH

5. The foregoing action of the Board is submitted for your review
and action.

Reviewed and approved:

13