DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
TRG
Docket No:
21 February 2002
1651-00
Dear
This is in reference to your application for correction of your
naval record pursuant to the.provisions of Title 10 of the 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 13 February 2002.
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.
You reenlisted in the Navy for six years on 8 December 1994. At
that time you had completed about six years of active service on
prior enlistments.
The record shows that you served without any
disciplinary infractions until 19 August 1998.
On that date you
received nonjudicial punishment (NJP) for four instances of using
indecent language, two instances of indecent assault and
solicitation to, commit sodomy.
The punishment imposed included
forfeitures of pay and a reduction in rate from YN2 (E-5) to YN3
(E-4).
Subsequently, your appeal of the NJP was denied.
At that time, you elected to waive your right to have
Based on the misconduct, you were processed for an administrative
discharge for commission of a serious offense and homosexual
conduct.
your case heard by an administrative discharge board.
September 1998, the discharge authority approved the
recommendation of your commanding officer that you be discharged
for misconduct with a discharge under other than honorable
However, on 18 September 1998 the discharge
conditions.
directive was rescinded because of your claim that you had
blindly waived your rights because of emotional stress.
discharge authority directed that you be given an opportunity to
On 15
The
request an administrative discharge board (ADB).
On 28 January 1999, the ADB unanimously found that a
preponderance of the evidence supported a finding of guilt on
four charges, found that you were guilty of another charge by a
The
two to one vote, and found you not guilty on two charges.
ADB unanimously recommended discharge under other than honorable
conditions.
On 5 March 1999, your defense counsel submitted a letter of
deficiency and contended that your initial waiver of rights was
improperly allowed in evidence and you were stigmatized as a
malcontent by testimony concerning your intent to file an equal
opportunity complaint and contact your congressman.
Counsel
further contended that the ADB erred in allowing a witness to
testify on the ultimate issue of misconduct, and its findings
were not supported by a preponderance of the evidence.
requested that the
for discharge be set aside,
Counsel
ADB's finding of misconduct and recommendation
or that you receive a new ADB.
On 11 August 1999, the commanding officer recommended discharge
stating, in part, as follows:
.
.
. After a 15 hour (ADB), and after hearing from 6
.
government witnesses and 6 defense witnesses, the (ADB)
determined that the respondent committed five separate
serious offenses, each involving improper homosexual
conduct on board either a military installation or a
Naval vessel.
he be separated with an Other Than Honorable Discharge.
The (ADB) unanimously recommended that
After review of the arguments made in the letter
I determined that the issues raised
(of-deficiency),
did not adversely impact (his) rights, nor did that
adversely impact the outcome of the (ADB).
The commanding officer noted your exemplary performance for
almost eight months after the ADB,
and recommended a general
discharge instead of the discharge under other than honorable
conditions recommended by the ADB.
Naval Personnel, a general discharge by reason of misconduct was
directed.
You were so discharged on 1 November 1999.
After review in the Bureau of
You essentially contend that you were improperly discharged
In your application you are requesting, in effect, a change in
the reason for your discharge so that you can receive separation
pay-
for misconduct based
deficiency.
The Board considered the letter of deficiency but concluded that
even if was improper to admit the disputed testimony opining that
on the issues raised in the letter of
2
In this regard, the
the senior member characterized them
you were guilty, this error was harmless.
Board noted that the ADB members heard all the testimony and
found you guilty by a preponderance of the evidence of some
Therefore, it appears that
charges, but not guilty of others.
the ADB members performed their duty to evaluate the evidence in
a conscientious manner and that they were not influenced by the
The Board further noted that the senior
disputed testimony.
member essentially stated that your election of an ADB after,
initially waiving this right,
would not be held against you.
Concerning your grievances,
as "background and side issues", and that the central
determination would be whether you committed misconduct.
The
Board further decided that the determination of the ADB that you
did commit misconduct was reasonable and should not be
overturned.
reason of misconduct was proper as issued and no change is
warranted.
The Board concluded that the general discharge by
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
The names and
It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
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
3
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