DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

CRS
Docket No: 
8 November 2002

2511-01

From : Chairman, Board for Correction of Naval Records
To:
Subj:

Secretary of the Navy

ORD OF

(a) 10 U.S.C. 1552

Ref:
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
filed enclosure (1) with this
former enlisted member of the Navy,
Board in which he appears to request reinstatement in the Navy or
a change in his reenlistment code.
2. The Board, consisting 
reviewed Petitioner's allegations of error and injustice on 2
October 2002 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.
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

qf Messrs. Milner, 

Caron, and 

Novello,

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 on 3 October 1990 for

five years after about eleven years of prior active service.

d. On 3 May 1995 Petitioner's command apparently notified the

Family Advocacy and Prevention Branch of the Navy Personnel
Command (PERS 661) that Petitioner had sexually abused his 15
year old stepdaughter.
On 18 May 1995 PERS-661 advised that he
might be a candidate for the Family Advocacy Program (FAP) and
requested that additional information be provided within 90 days,
including a psychosexual evaluation.

e. Petitioner was arrested by civil authorities on 19 May 1995

and charged with forcible sodomy and indecent liberty with his
stepdaughter.

f. On 29 August 1995 the Case Review Subcommittee (CRS) of FAP
substantiated sexual abuse of his stepdaughter and recommended
sex offender treatment.

g- On 13 September 1995 civil authorities added a second

charge of indecent liberty with his stepdaughter.
Also on this
date, Naval Medical Center (NAVMEDCEN), Portsmouth, notified the
command of the CRS action,
recommended a psychosexual evaluation
and stated that NPC had 
Petitioner extended his enlistment for 24 months on this date.

"flaggedtt  his case.

Additionally,

h. On 7 November 1995 Petitioner was transferred to the

Transient Personnel Unit at Naval Base Norfolk based on the need
for kidney treatment and a testicular disorder.
subsequently assigned to the local Naval Legal Service Office
(NLSO) for limited duty.

He was

i. Although it is not in the record, it appears that a

psychosexual evaluation was prepared on or about 16 December
1995.
treatment from a civilian psychologist in January 1996, and made
good progress in treatment during the next 21 months.

The record does reflect that Petitioner began receiving

j. On 18 January 1996 Petitioner pled guilty to the three
The court
This was based on the

civil charges and was convicted of the offenses.
sentenced him to two years probation.
ongoing treatment for sexual offenders he was receiving.
Also on
this date, the NAVMEDCEN reported to the TPU that the Case Review
Committee (CRC) recommended further sexual offenders treatment.

k. On or about 31 August 1996 Commander, Naval Base

(COMNAVBASE) Norfolk finally responded to the PERS 661 request
for information of 16 May 1995.
In its response, COMNAVBASE
forwarded the psychosexual evaluation and two favorable progress
reports and, based on a favorable recommendation from the
commanding officer of the NLSO, recommended Petitioner's
enrollment in the FAP.

1. On 21 October 1996, after being found physically fit for

duty, the Engineering/Hull Assignment Branch of the Navy
Personnel Command (PERS-402) issued orders, effective 15 December
1996, transferring Petitioner to the local Shore Intermediate
Maintenance Activity (SIMA).
changed to 28 February 1997.

The reporting date was later

m. On 24 January 1997 Petitioner was advised he would have to

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extend or reenlist so he would have sufficient obligated service
Accordingly,
to accept the orders transferring him to the SIMA.
on 27 February 1997 Petitioner was reenlisted for two years by
COMNAVBASE Norfolk.

n. On 17 April 1997 NPC denied the recommendation for

Petitioner's entrance into the FAP.
that even though he had been erroneously reenlisted, he would be
allowed to remain on active duty until December 1997 in order to
complete the ongoing program of sexual offender treatment.

The letter further stated

o. On 23 April 1997 the 

SIMA's command master chief (CMC)

reported that Petitioner had admitted that COMNAVBASE did not
know about his case, and that he also denied any civil conviction
for sexual offenses.

Pa In an undated statement, an officer from NLSO refuted the
CMC's statement and alleged that NLSO and COMNAVBASE had worked
together on Petitioner's situation, and that Petitioner's civil
conviction was well known by COMNAVBASE.

q. On 8 January 1998 an administrative discharge board (ADB)

recommended that Petitioner be separated with an honorable
discharge by reason of erroneous enlistment.
at the ADB that 
allowed Petitioner to reenlist.
FAP personnel at NPC had agreed to the issuance of orders to
SIMA.

COMNAVBASE.was aware of the open FAP case, and
It was also believed that the

It was acknowledged

r. On 15 April 1998 the Chief of Naval Personnel (CNP)

approved the recommendation of the ADB and directed separation.
Accordingly, on 1 May 1998 Petitioner received an honorable
discharge by reason of erroneous enlistment.
The DD Form 214
issued on that date shows a total of 18 years, 9 months, and 3
days of active service.
reenlistment code of RE-4.

At that time, he was assigned a

S . On 9 January 2002, in response to a request 

Board, the Assistant Legal Counsel for NPC acknowledged that even
though Petitioner apparently met the eligibility criteria for the
FAP, the Deputy CNP 
member's entry into the program."

"had discretion to formally accept or deny

from,this

t. The directive governing the FAP states that once the

command notifies PERS-661 of allegations of child abuse, the
member is ineligible to transfer or reenlist until the case is
resolved.
Administrative separation directives state that an
individual may be separated by reason of erroneous enlistment if
a reenlistment would not have occurred if appropriate regulations
had been followed, and the reenlistment did not result from fraud
by the member.

u. The 

15-Year Early Retirement/Fleet Reserve Program was

drawdown of personnel.

The TERA authorized

This was

The Board's action is based on Petitioner's

It was not an entitlement,
implemented in fiscal year (FY) 1994.
but a temporary early retirement authority (TERA), authorized to
help facilitate the 
the Secretary of the Navy to offer early retirement at a reduced
monthly stipend to servicemembers who completed at least fifteen
but less than twenty years of active service.
authorized by law through December 2001.
However, throughout its
existence, TERA was offered only to individuals in certain rates,
and members being processed for administrative separation were
presumptively ineligible.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
rehabilitative efforts and the unwarranted and unexplained delays
which resulted in his discharge only a year or so before
attaining 20 years of active service and entitlement for transfer
to the Fleet Reserve.
It appears from the record that Petitioner's command became aware
of his child abuse in May 1995,
and reported it to PERS-661 in a
timely manner.
That office rather quickly directed that certain
action be taken and that the results be forwarded within 90 days.
1996--about  15 months
However, no response was made until August 
after the direction of PERS-661.
authorities another 8 months--until April 
1997--to make a
determination concerning the recommendation to enroll Petitioner
in the FAP.
Accordingly, a decision that apparently should have
taken about four or five months took nearly two years--from May
1995 to April 1997.
All of this might not be so troubling to the Board if Petitioner
committed further misconduct,
conscientious in his efforts at rehabilitation.
was not the case.
the Navy and the civil authorities wanted him to do--continue to
perform well and work on his rehabilitation.
Although the Board
in no way wishes to minimize child abuse, the Board does note
that the civil authorities were content to place Petitioner on
probation.
Given these circumstances,
decision not to enroll Petitioner in the FAP.
The Board realizes
that meeting the minimum eligibility criteria does not and should
not necessarily mandate acceptance into the program, and senior
officials need to have some discretion.
Nevertheless it believes
that Petitioner's efforts at rehabilitation warranted some sort
of explanation, either at the time of the decision or in the
advisory opinion furnished to the Board.
Nevertheless, no such

performed poorly or was less than
However, this
On the contrary, Petitioner did exactly what

the Board is very troubled by the

It then took cognizant

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In this regard, separation is

explanation has been put forth.
On the other hand, Petitioner was subject to discharge by reason
of erroneous enlistment.
appropriate for that reason only if enlistment or reenlistment
would not have occurred if the relevant facts had been known, and
It certainly
if there was no fault on the part of the member.
appears that Petitioner was not at fault, and PERS-402 directed
reenlistment or extension only because it was unaware that
Petitioner was still in limbo concerning his status in the FAP,
and therefore ineligible to reenlist.
Since Petitioner's separation was technically proper, the Board
cannot justify a period of constructive service to attain 20
years of service and entitlement to transfer to the Fleet
Reserve.
The Board nevertheless believes that his discharge only
about a year away from such entitlement was unfair.
Accordingly,
the Board believes that the most appropriate course of action is
to recommend Petitioner's transfer to the Fleet Reserve under the
provisions of TERA.
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 1 May 1998 but instead transferred to the
Fleet Reserve on that date under the provisions of TERA.

b. 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.

C . That any material directed to be removed from Petitioner's
for retention in a confidential file
with no cross references being made

naval record be returned to the Board together with a copy of
this Report of Proceedings,
maintained for such purpose,
a 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.

ROBERT D. ZSALMAN
Recorder

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