THE ASSISTANT SECRETARY OF THE NAV

Y

(MANPOWER AND RESERVE AFFAIRS

WASHINGTON. D.C. 20350-100

)

0

20 December  2002

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS

Subj:

Correction of Naval Records  
10 U.S.C. 1552.
recommendation is disapproved.

.-_
I have considered the recommendation of the Board for
(BCNR) under the provisions of

___---

For the reasons that follow, the 

BCNR's

The BCNR concluded that petitioner's 

dkscharge  was

unfair because he had been mistakenly assured by his
command that he would not be processed for discharge if he
pled guilty to a misdemeanor.
I disagree that this
constitutes an error or injustice warranting relief.
The
command had no authority to extend such assurances.
In
addition, given the circumstances surrounding the incident,
I am not persuaded that the command's erroneous assurances
were the motivating factor in petitioner's decision not to
contest the charges.

In light of these circumstances, I find no error or

injustice warranting relief.

The petition is denied.

Manpower and Rese

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

& WASHINGTON DC 20370-5100

2 NAVY ANNEX

AEG
Docket No. 8202-01
10 October 2002

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

Secretary of the Navy

CORD OF

(a) 10 U.S.C. 1552

Ref:
Encl: (1) Case Summary

(2) 

Subjectls 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
his discharge and reinstating him on active duty.
2. The Board, consisting of Messrs. Tew, Frankfurt and Carlsen,
reviewed Petitioner's allegations of error and injustice on 22
May and 24 September 2002 and,
pursuant to its regulations,
determined that the partial corrective action indicated below
should be taken on the evidence of record.
considered by the Board consisted of the enclosures, naval
records and applicable statutes,
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice, finds as
follows:
a.

Before applying to this Board, Petitioner exhausted all

regulations and policies.

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

Documentary material

b.

Petitioner's application to the Board was filed in a

timely manner.

C.

Petitioner has served continuously on active duty since
Over the next
His more
In January 1996 Petitioner was advanced to the rate of

4 May 1982, when he first enlisted in the Navy.
ten years, he served in a mostly satisfactory manner.
recent enlisted performance evaluations reflect excellent
service.
gunners mate (guns) first class 
Subsequent
evaluations indicate that he continued to serve in an excellent
However, he received promotion recommendations of
manner.
WWpromotable,W instead of one of the more favorable
recommendations of 
has received a number of awards and decorations, including three
Good Conduct Medals and the Southwest Asia Service Medal.

"must promote" or "early promote."

(GMGl; E-6).

Petitioner

d.

On 13 March 1998, while assigned to USS SPRUANCE (DD
963)‘ Petitioner reenlisted for four years.
Less than three
weeks later, at approximately 2330 hours on Tuesday, 30 March
1998, Petitioner was arrested by civil authorities in
Jacksonville, FL and charged with the felony offense of lewd and
lascivious acts with a minor.
In a sworn declaration submitted
in connection with subsequent federal court action, the legal
officer of SPRUANCE, Lieutenant Junior Grade (LTJG; O-2) S,
described as follows certain events that followed Petitioner's
civil arrest:

In early 1998, I received a telephone call from the
Jacksonville Sheriff's Department notifying me that a
member of my division, (Petitioner),
charged with the felony of 
Presence of a Minor."

had been arrested and
Lascivious Acts in the

"Lewd and

. 

. 

(A)fter returning to the ship,
Mainly, I
‘ me that he had removed his shorts to

Version of the story.

. SPRUANCE, Commander (CDR; O-5) (W).

(Petitioner) told me
hii 
remember him telling
shake the sand out.
He said it happened in the evening after sunset and he had
thought he was alone.
Shortly after (Petitioner) was arrested, I discussed the
felony charges against (him) with the Commanding Officer
(CO) of  
CDR
(W's) position was that if (Petitioner) was found guilty of
the felony, he would process (him) for separation from the
Navy.
Soon after the initial report,
of a plea bargain.
(He) stated he was in bad financial
shape due to the attorney's fees, and further stated that
he was thinking of pleading no contest to a misdemeanor.
I asked (CDR W) what he intended to do if (Petitioner) pled
guilty to a misdemeanor.
separation for a misdemeanor.
I am not sure who came up with the idea, (CDR W),
(Petitioner), or myself, but I visited the local Trial
Service Office to find out what the Navy Legal's reaction
would be.
Lieutenant (LT; O-3) (B) was who I talked to.
After discussing the facts of the case, (LT B) said that he
did not see Navy Legal taking (Petitioner) to a 
martial or administratively separating him over a
misdemeanor.
I returned and told this to (CDR W).
then told to talk to (Petitioner).

(CDR W) said he would not seek

(Petitioner) started to talk

court-

I was

2

.‘;

‘,’

I relayed the following information to (Petitioner):
w)  would not seek separation or court-martial for a no
contest plea to a misdemeanor . . .

(CD

R

e.

On 10 July 1998 Petitioner pled no contest to a

misdemeanor violation of a Florida statute prohibiting the
exposure of one's sexual organs in public, or public 
The court then withheld any adjudication of guilt but sentenced
Petitioner to 12 months probation,
a $1,000 fine and 50 hours of
community service.
unsupervised contact with children and undergo a sexual
evaluation.
llCivi1 Court Case Report" which was
generated as a result of this action, reflected that Petitioner
was apprehended on 30 March 1998, tried on 10 July 1998, charged
with lewd and lascivious acts, pled no contest, had adjudication
of guilt withheld, and was sentenced as noted above.

It was further directed that he have no

The computerized

nudity.l

f.

The sexual evaluation directed by the court took place

on 29 July 1998.
The ensuing 14 August 1998 report of that
psychological evaluation states as follows concerning the
conflicting versions of events on 30 March 1998:

After parking his truck and beginning

He denied seeing anyone on the beach who might

(Petitioner's) account of the events on the night in
question started with him claiming that he went to
8:30 or 9:00 p.m. He
Jacksonville Beach to relax around  
left the beach briefly but returned to Jacksonville Beach
at around 10:00 p.m.
to walk to the beach, (Petitioner) claimed that he was
approached by a woman who accused him of not wearing any
pants or bathing trunks under his long T-shirt.
(Petitioner) claimed that he showed this woman that he was
indeed wearing blue shorts and then he proceeded to the
beach.
He briefly sat in the sand for approximately five
minutes after which he walked into the sand dunes, took his
shorts off, shook the sand off his shorts, and replaced the
shorts.
have seen him take his shorts off in the sand dunes. He
then walked back to his truck and from a distance, saw the
car of the alleged victims but denied approaching the car.
The victims in this case claimed that (Petitioner) walked
up to their car with his penis exposed and masturbated in
their view.
(Petitioner) denied this and claimed that he
walked directly to his truck but noticed the same woman
sitting in her car with her two children.
(Petitioner)
supposedly left the parking lot but was soon pulled over by
the police and arrested.
(Petitioner) claimed that the
police never told him why he was being arrested but they
did ask him if he recalled doing anything at the beach that
was unusual.
his removinq his shorts in the and dunes to brush the sand
off the shorts but did not tell
S 5800.3 (West 1999).

To this (Petitioner) told the police about

the police about the

1 FLA. STAT. ANN. 

3

,.

0: 

,

His response was, 

woman's supposedly false accusation of his not wearing
pants when he claimed that he was doing so.
(Petitioner) was asked why he thought it important to tell
the police about his removing his shorts but not tell them
about the woman "falsely" accusing him of not wearing
"1 don't know.
shorts.
I guess I didn't
see the importance in telling them about 
"1 regret I even told them about taking my shorts off." He
finally stated that what the woman said to him seemed to
him to be 
"casual conversation" and did not consider it
important at the time.
(Petitioner) could give no explanation for why a woman and
her children, admitted perfect strangers, would purposely
lie about his behavior.
and 10 year old could learn to repeat that lie consistently
to the police after only about ten minutes had expired.
However, when the facts of his story and the police report
were reviewed with him, (Petitioner) maintained his
innocence even though he acknowledged that the
circumstances would be 
children to have fabricated the events.

He also could not explain how an 8

"amazing" for the woman and her

He added,

her."

On 6 October 1998

the local Family Advocacy Program

(FAP)gheld a hearing in 
letter, dated 1 October 1998, to the FAP that reads, in part, as
follows:

Peiitioner's case.

He submitted a

I was wrongfully accused of the charge that was brought
against me.
I pled 
guilt withheld
II to a misdemeanor charge.
told me that if I did so, the Navy would not seek action
against me.
This, coupled with the extremely high cost of
legal fees, is the only reason I did not continue to fight
these charges in court  

"No Contest: with the adjudication of
Navy officials

.
. . 

On 14 October 1998 the CO of Naval Station (NAVSTA), 
sent a letter to the CO of SPRUANCE, stating that the FAP had
substantiated Petitioner's case for child sexual abuse, noting,
that "according to the allegations,
(Petitioner) exposed his
private body parts and masturbated in the presence of two minor
children."
Administrative separation action was recommended. A
copy of this letter was sent to the Child Sex Abuse Case
Supervisor in the Advocacy and Prevention Branch of the Navy
Personnel Commmand (Pers-661D).

Mayport, FL

h.

In an affidavit filed in connection with the federal

court action, CDR W, the CO of SPRUANCE, explained his subsequent
action as follows:

At the time I discussed (Petitioner's) case with (LTJG S),
I did not realize that Navy regulations required me to
process (Petitioner) for separation.

I thought that the

, 

.

‘.:

decision to take action against him was at my own
discretion.
Sometime later I received a letter from the local Navy
Family Advocacy Program Office recommending I take
administrative action against (Petitioner).
an opinion  
local Trial Service office, who informed me that
administrative processing was mandatory in cases of deviant
sexual behavior, to include “indecent exposure," such as
that to which (Petitioner) pled no contest.
sent (him) to an administrative board.

from a Command Services attorney at the

I then sought

Therefore, I

. . 

.

Accordingly, on 30 October 1998 Petitioner was notified that
administrative separation action had been initiated by reason of
misconduct due to commission of a serious offense and civil
At that time, Petitioner elected to present his case
conviction.
to an administrative discharge board (ADB) and to obtain copies
of documentation forwarded to the discharge authority supporting
the foregoing bases for separation.

i.

On 5 November 1998 Petitioner's civilian counsel

submitted a letter to his military counsel that stated as follows
concerning the civil court action and his client's response to
it:

the State Attorney's Office

This, along with paying a fine and

(Petitioner) was arrested for a second degree

Initially,
felony and his case was investigated by the State
Attorney's office. Eventually,
offered (Petitioner) the opportunity to enter a plea to a
misdemeanor charge with the understanding that he would not
be convicted of any crime and that he would obtain an
evaluation and any follow-up counseling that would be
deemed appropriate.
completing some community service hours, was what
(Petitioner) agreed to do.
with the case and be charged with a felony.
If he were formally charged 
guilty by a jury, he would undoubtedly be sent to state
prison and become a convicted felon.
While it was not
certain that he would be convicted, there would certainly
be a chance if he were to have risked going to trial on the
felony charge.
A further consideration was that if he had
decided to proceed to trial, he would have expended
anywhere from $7500 to $10,000 in legal fees and costs to
handle the case through a jury trial.
avoid any possibility of incarceration as well as being
convicted of a crime, he decided that it was in his best
interest to enter a plea of no contest and resolve the case
.

with,a felony and he was found

His alternative was to proceed

Given that he could

. ’ 

.

5

*,

I’.

:.. 

.

*:

On 8 December 1998 the executive officer 
Lieutenant Commander (LCDR; O-4) N, submitted a letter to the
military counsel which states as follows concerning the
processing of Petitioner's case before the FAP:

(X0) of SPRUANCE,

The

.
. . 

"no contest with the

& lascivious acts in the presence of a minor  

I attended the (FAP) hearing for (Petitioner).
(hearing) convened because (Petitioner) had been accused of
lewd 
It was pointed out that (Petitioner) was not convicted of
the felony charge, but rather pled 
adjudication of guilt withheld
II to a misdemeanor charge of
indecent exposure.
The (FAP) board stated that it was not
concerned by what the legal system had found.
No contest
with adjudication of guilt withheld was  
(T)hey believed their guidance to be clear, if a child was
a victim of indecent exposure (although inadvertent) then
there was a reason for separation.
The vote was unanimous
that (Petitioner) should be processed for separation.
I pointed out that a convicted child molester has been
allowed to remain on active duty.
inadvertent exposure be reason for separation?
was that incest was treatable, but this form (of) sexual
deviancy (exposure to minors, inadvertent or not) is
untreatable.

So, why would

wguiltyv  

The answer

.. . 

j.

Petitioner's ADB met on 10 December 1998.

In his
opening statement, the recorder to the ADB summarized the case by
stating that Petitioner was arrested on 30 March 1998 by the
Jacksonville Sheriff's Office,
charged with lewd and lascivious
behavior, and subsequently pled no contest to the lesser offense
of indecent exposure in public.
The only substantive evidence
introduced by the recorder concerning the civil action against
Petitioner, or the underlying allegations, was the Civil Court
Case Report.
nor any police report was introduced.
introduced certain provisions from the Naval Military Personnel
Manual (MILPERSMAN), and explained their relevance as follows:

Neither the 14 August 1998 psychological evaluation

The recorder also

. 

. but 

that's where we are here.

I'd like to go over it a little bit.

What I did was to copy the relevant parts of the MILPERSMAN
Separation
. 
by reason of misconduct,
If you
note under the policy it says nolo contender (sic). No
contest pleas, member is being separated based on that. On
the next page of that, mandatory processing, the command
doesn't have a choice, they must process this person, and
if you look at lewd and lascivious acts, it falls under
that for processing.
. (t)he findings
and recommendations, basically, what we do in the (ADB).
First, make the decision whether the event occurred or not.
We're not going to go into the facts of the case because
(Petitioner) plead no contest, by the standards of the
MILPERSMAN we find misconduct so that's the decision that

Next exhibit is  

. . 

6

Next decision that you have to make is
To determine that

has to be made.
whether or not to separate or retain.
sepaiation (are), seriousness of the offense, the
likeliness of recurring, potential for further service, and
the member's military record  

the factors that you consider for retention or

.
. . 

For some reason, these MILPERSMAN provisions introduced by the
recorder were deleted from the record of the ADB.

k.

In his opening statement, the defense counsel alleged

Counsel introduced in

that processing for separation in this case was unfair given
Petitioner's lengthy service and good duty performance, the
nature of his offense, and the promise made to him by the command
that he would not be so processed.
evidence a history of his assignments, his awards and
qualifications, and his most recent enlisted performance
evaluations.
Counsel also introduced the letters from
Petitioner, his civilian attorney and the 
Even though it was
apparently already in evidence,
counsel introduced the applicable
MILPERSMAN article to emphasize the fact that although separation
processing was mandatory in Petitioner's case, separation was
not.
MILPERSMAN setting forth the factors to be considered on
retention and separation,
recorder) that  
to retain
are what you should concentrate on 

Counsel apparently also introduced the provision of the
and stated that "I agree with (the

. or separate (Petitioner), 

. the main question here

is whether
four factors

those 

X0.

.I)

. . 

. . 

. 

1.

The recorder apparently called no witnesses to testify

before the ADB.
Defense counsel called LTJG S, the ordnance
officer; LTJG U, the gunnery officer; and Senior Chief Gunners
Mate (GMCS; E-8) B, Petitioner's leading chief petty officer.
All of these individuals testified to his excellent performance
of duty while assigned to SPRUANCE.
proceedings 
behalf.
However, the senior member of the ADB, LCDR E, in her
testimony in connection with the federal court action, stated
that "he got on the stand and swore that he 
wrong 
m.

After the defense counsel made a final argument, the ADB

does.not reflect that Petitioner testified in his own

hadn't done anything

ADB's record of

retired for deliberations.
Upon reopening, the ADB announced a
finding that Petitioner had not committed misconduct due to
commission of a serious offense or civil conviction.
LCDR E's
federal court testimony describes subsequent events as follows:

The 

.ll

. 

. 

The original findings that we announced were 
misconduct for the civil conviction or for 
serious offense  
findings the  
. . 
a recess and had everyone leave the room.
defense lawyer, basically,
approached the (ADB) and drew
our attention to the fact that the material that had been

commjs:ion of a
. government lawyer immediately asked for
And he and the

. When we announced the original

no

. . 

.

7

presented to us was a Navy instruction that required us to
find guilt for civil conviction based on the act that
(Petitioner) had entered a no contest plea to the charges
against him in Jacksonville.

Accordingly, the ADB then found that Petitioner had been
convicted by civil authorities, but recommended that he be
retained in the Navy.
Concerning this recommendation, LCDR E
testified in court that it was based on his good service record
and uncontradicted testimony to the effect that he had done
nothing wrong.

n.

On 22 December 1998 CDR W favorably endorsed the ADB

report and recommendation and strongly recommended Petitioner's
retention, characterizing him as a "valuable asset" to SPRUANCE,
and noting that he was one of the finest Range Masters in the
Navy.
On 1 April 1999 the CO advised the Navy Personnel Command
(NAVPERSCOM) that Petitioner had been reassigned on 25 January
1999.
The CO forwarded the ADB proceedings to the Navy Personnel
Command on 5 April 1999,
erroneously reporting that the ADB had
found that the allegations against Petitioner were not supported
by a preponderance of the evidence.
The CO also echoed his
earlier recommendation, stating that Petitioner was a good Sailor
with the ability to provide results.
By this time, Petitioner
had reported to his new duty station,
Special Boat Unit (SBU) 22,
Stennis Space Center, MS.

.

On 12 May 1999 the Chief of Naval Personnel (CNP)

forwazded Petitioner's case to the Assistant Secretary of the
Navy for Manpower and Reserve Affairs  
(ASN/M&RA) with a cover
letter that reads as follows:

(CNP) does not concur.

. 

. . 

. which demonstrates an

. recommending separation.

An (ADB) found (Petitioner) committed misconduct due to
civilian conviction and recommended retention.
His (CO)
concurs.
This case is forwarded
. 
The (ADB) had evidence  
incompatibility with military service.
--(Petitioner) was arrested for exposing himself and
masturbating in the presence of two minor children.
charge (sic) with lewd and lascivious acts in the presence
of a minor.
indecent exposure in public. He was sentenced to 12 months
probation,' (a) $1,000 fine, 50 hours of community service,
and directed to have no unsupervised contact with children.
Recommend you approve the administrative separation of
(Petitioner) for misconduct due to civilian conviction with
characterization of service as General (Under Honorable
Conditions).

He pled no contest to the lesser charge of

Specifically:

He was

8

It appears'that the drafter of this memorandum, an individual in
the Enlisted Performance Branch (Pers 832) of NAVPERSCOM,
utilized the copy of the letter dated 14 October 1998 from the CO
of COMNAVSTA 
Pers-
661.

Mayport to the CO of SPRUANCE that was sent to 

P*

On 20 May 1999 

Accordingly, by message of 27 May 1999, SBU 22 was directed to
separate Petitioner with a general discharge by reason of
misconduct within 30 days.

ASN/M&RA approved 

CNP's recommendation.

cl*

Prior to being discharged, Petitioner initiated action
in the United States District Court for the Southern District of
Mississippi in which he requested that the Navy be enjoined from
discharging him.
The court then granted Petitioner's request for
a temporary restraining order (TRO) to keep him on active duty
during the court action.
testified as follows concerning his motivation for pleading no
contest to the misdemeanor charge:

During the court action, Petitioner

. . 

I was going to plead  
. not guilty to the (felony) charge
if I had went (sic) to court on it and when they told me
that they would not pursue it any further, I figured it was
in my best interest, what I thought at the time was going
to save me about $10,000 in court costs and attorney's
fees, that I would just go ahead and take the no contest
because I was not being convicted of a crime.

Additionally, in an affidavit and in his testimony, Petitioner
essentially adhered to his version of events concerning his
actions on the night of 30 March 1998.

r.

and vacated the TRO.

On January 2000 the court found that Petitioner's
denied his request for an
Accordingly, Petitioner

allegations were without merit,
'injunction,
received a general discharge by reason of misconduct on 3
February 2000, after 17 years and 9 months of active service.
Petitioner then appealed the ruling of the District Court to the
United States Court of Appeals for the Fifth Circuit.
On 9
October 2000 the appellate court dismissed Petitioner's appeal
and complaint due to a lack of jurisdiction based on his failure
to exhaust his administrative remedy before this 

Board.2

Petitioner then submitted an application to this Board,

accompanied by an affidavit which reads, in part, as follows:

S.

On or about March 30, 1998, affiant was arrested  
. for
Lewd, Lascivious or indecent assault or act upon or in the
presence of a child  
. Affiant did not masturbate or do
any other lewd or lascivious act in the presence of a child
or anyone else.

. . 

. . 

2

Strickland
U.S._, 121 S.Ct. 2191, 149 

Danzig, 235

v .

F.3d  1339  

(Sth

2000),
L.Ed.2d 1023 (2001).

Cir. 

cert.

denied,

9

Affiant did take his shorts off to shake sand from them in
an isolated section of the beach.
It was dark and affiant
believes that he could not be seen by anyone.
was blocked from view of the parking lot or the roadway.

This area

. 

. 

.

Affiant plead nolo contendere 3 (to misdemeanor indecent
exposure), in part, in reliance upon naval officials
assurances that he would not be administratively separated.
Financial concerns and the possibility of being tried for a
felony if he did not plead guilty to the misdemeanor were
other factors he considered in making his decision.

. 

.

. 
Affiant had no knowledge that the result of the (ADB) was
forwarded to 
provided with the supporting documents sent to 
(ASN/M&RA)
or allowed to submit information on his behalf to
(ASN/MtRA).
statement of reasons for  

He has never been presented with a brief

(ASN/M&RA) for- adjudication.

(ASN/M&RA's) actions.

He was not

t.

In a brief attached to Petitioner's application, counsel

makes the following contentions:

1910.4B;  and

the effect of an 
lectured, off the record, to change

no-
The provisions of the MILPERSMAN which state that a 
contest plea is tantamount to a conviction, and that any
conviction is binding on an ADB, are without force and
effect since those provisions are not set forth in
Secretary of the Navy Instruction (SECNAVINST) 
since that directive empowers the ADB to determine whether
allegations are supported by a preponderance of the
evidence, and states that a member may not be separated
based on action having
The ADB was improperly
its finding.
Since 
not require that exposure of one's genitalia be indecent,
and there is such a requirement in military law, his
infraction was not "closely related" to a military offense
and, therefore, did not meet the requirements for
separation by reason of misconduct due to civil conviction.
ASN/M&RA's action to discharge Petitioner was arbitrary and
capricious since she disregarded the well-reasoned
recommendation of the ADB, gave no reasons for her
decision, and relied on invalid regulations.

.Petitioner plead no contest to a statute which does

acquittai.

3 Latin for
19571).

WI will not contest it."

(Black's Law Dictionary 1198 

[4th  ed.

10

ASN/MCRA

The separation action was based on insufficient evidence
since the only evidence against Petitioner was the Civil
Court Case Report; the memorandum from CNP to 
contained misleading information, specifically, that
Petitioner's exposure was in the presence of children; and
the ADB concluded the evidence did not show that the
specific circumstances of the offense warranted separation.
ASN/M&RA failed to properly consider Petitioner's potential
for rehabilitation and the established criteria for
retention.
Petitioner's right to due process of law was violated
because neither CNP nor ASN/M&RA provided him with notice
and an opportunity to respond after CNP recommended
discharge despite the favorable recommendation of the ADB.
It was fundamentally unfair to discharge Petitioner based
on his no contest plea since it resulted, in large part,
from assurances of Navy representatives that such a plea
would not result in administrative separation.

U.

concerned."4

Federal law authorizes the discharge of a regular
Implementing

enlisted servicemember prior to the expiration of his enlistment,
"as prescribed by the Secretary 
guidance on enlisted administrative separations is set forth in
Department of Defense Directive (DODDIR) 1332.14, SECNAVINST
1910.4B and MILPERSMAN Articles 1900 and 1910.
have consistently held that regulations of the individual
services, such as SECNAVINST 
comport with DOD regulations like DODDIR 1332.14.
conflict between a DOD regulation and a service directive, the
former is controlling.' Additionally, an instruction from
SECNAV binds all of his subordinates in their authority to issue
directives.6

Federal courts
1910.4B and the MILPERSMAN, must

If there is a

V.

The applicable provision of DODDIR 

1332.147 states that
an individual may be discharged by reason of misconduct due to
civil conviction if (1) he is convicted by civil authorities or
action is taken that is "tantamount to a finding of guilty;" (2)
the specific circumstances of the offense warrant separation; and
(3) either a punitive discharge would be authorized for the same
or a "closely related" 
offense8, or the sentence imposed by the

4 10 U.S.C.A. 
5 Gilchrist 
kherein).

S 1169 (West 1998).

v.  United States, 33 

United States v. Daskam,

;5  M.J. 35, 39 (CMA 

Encl. 3, 

Atch. 1, 

Fed.Cl. 791, 801 (1995) (and cases cited

31 M.J. 77, 81 (CMA 

1990); United States v. Lopez,

1992); United States v. Davis, 47 M.J. 484, 485-86 
q 1.11.1.1.4.1.1.

(1998).

8 Pt. IV and App.
offenses under the Uniform Code of Military Justice (UCMJ), and whether a
punitive discharge is authorized for each offense.

12 of the Manual for Courts-Martial (MCM) set forth all

11

civil authorities includes six months of confinement.
1982,' the drafters stated that
directive was first issued in 
"actions 
ItantamoyRt to a finding of guilty' includes pleas of
nolo contendere."
pertaining to separation due to civil conviction" is virtually
identical to DODDIR 1332.14.
provision12
specifically states that a plea of nolo contendere is an action
tantamount to a finding of guilty.

is similar to those in the superior directives but

The provision of SECNAVINST 

The corresponding MILPERSMAN

1910.4B

When this

. . 

W.

The 

MILPERSMAN13 states that when separation
"processing includes a court-martial conviction  
. or a
civilian conviction (or civil action tantamount to a civil
conviction), the (ADB) may not render its own findings, because
these matters have already been judicially determined to have
occurred."
No similar provision is contained in SECNAVINST
Both directives state that the ADB must determine
1910.4B.
against4a  respondent are supported by a
whether the allegations 
preponderance of the evidence.
Those regulations further
state that an individual may not be separated based on conduct
resulting in an acquittal or action having the same effect,
unless the action is based on a determination not going to the
issue of guilt or innocence,
or the judicial proceeding at issue
was 
SECNAV.

con@cted  in a state court and separation is approved by

X.
.

law16 states that in a case such as

Florida 
Petitioner's, a court "may  
guilt 
of..
probation of a  
nolo contendere."
probation 
of appeal.

hear and determine the question of the
. has entered a plea of
is sentenced or placed on
#?ter adjudication of guilt is withheld has the right

. with or without an adjudication
. who. 
indibidual who 

defenda;t

An

. . 

. 

. 

.

. 

Y=

The Florida statute which Petitioner allegedly violated

reads, in pertinent part, as follows:

Exposure of Sexual Organs
It is unlawful to expose or exhibit one's sexual organs in
public or on the private premises of another, or so near
thereto as to be seen from such private premises, in a

(2), Pt. 1, 

' DODDIR 1332.14 was reissued in 1993 and changed on one occasion in 1994.
However, neither the reissued regulation nor the change altered the provision
?8
11
12
13
14
15
16
17

issue.
Sectional Analysis, 47 Fed.Reg. 10168 (Mar. 9, 1982).
Encl. 
Article 1910-144.
Article 1910-518.
SECNAVINST 
Id.,
FLA. STAT. ANN.  
FLA. R. CRIM. P. 3.670.

(2), Pt. 5, 
A3a; and 1910-220.

A7b; MILPERSMAN 1910-518.

1910.4B, Encl. 
p 

(2), Pt. 2, 

S 948.01 (West 1999).

at Encl. 

Kl(4).

I 

P 

12

vulgar or indecent manner,
in any place provided or set apart for such purpose.

or to be naked in public 

Fgcept

In interpreting the virtually identical predecessor version of
this statute, the Florida courts consistently held that in order
to prove a violation of the prohibition against public nakedness,
mere nudity is insufficient and some sort of lewd or lascivious
behavior must also be 

present.lg

Indecent exposure is an offense under UCMJ Article

An element of this offense is that the

obscene and repugnant to common
and tends to excite lust and deprave sexual 

yIcyused exposed
134?'
his body "to public view in an indecent manner.
"indecent" is defined as immorality relating to sexual impurity
which is grossly vulgar,
propriety;
The Criminal Law Division of the Office of the Judge Advocate
General has submitted an advisory opinion which states that if
Petitioner was truthful in his assertion to the effect that he
only took off his shorts to shake sand from them, such action
would not constitute indecent exposure under UCMJ Article 134.
However, masturbation in the presence of children "would
certainly violate Article 134  

The term

.II

. . 

morals.22

1910.4B23 states

aa. The applicable provision of SECNAVINST 

that both the ADB and the separation authority must consider a
respondent's potential for rehabilitation and further military
service.
The directive also states that certain factors may be
considered on the issue of separation or retention, including the
seriousness of the offense and likelihood of a recurrence, and
the 
record.
MILPERSMAN25 goes
even further, stating that such factors "should" be considered.
ASN/M&RA  performs her

indixidual's potential for further service and military

bb. 'When a military official such as 
faith."26

duties, there is a strong presumption that she does so
"correctly, lawfully and in good 

The corresponding provision of the 

decision-
making if an individual may be deprived of a liberty or property

cc& Procedural due process restricts governmental  

So.2d 891 (Fla. 1971); Duvallon v. State, 404 

So.2d

463 

So.2d 271 (Fla.App.2 Diet. 1984). See also United

450 

So.Zd 888 (Fla.App.2 Dist.

F.Supp. 1153 (M.D.

250 

S 800.3 (West 1999).

l8 FLA.STAT. ANN. 
19 Hoffman v. Carson,
196 (Fla. App. 1981; Goodmakers v. State,
1984); Payne v. State,
States v. A Naked Person Issued Notice of Violation, 841 
%a- 
10 U.S.C.A. 
21 MCM, Pt. IV, 
9Oc.
22 Id.,
 
24 
23
25 

16 FLA. JUR. 2D  Criminal Law 

at 
Encl. Pt.
(2), 2,
Id., 
Article 1910-220.

S 934 (West 1998).

88b(l).

(2), 2,

at Encl. Pt.

lgg3);

IA2b.

A2d.

p 

P 

I

S  3707 (2001).

26 Doe v. United States, 132
United States, 594 

F.2d 804, 813 

(Ct'.Cl. 1979).

F.3d 1430, 1434 (Fed. Cir. 1997); Sanders

v.

13

courts have held that an enlisted servicemember

Constitution.27
an2gndividual prior to the expiration of his

interest within the meaning of the due process clause of the
Given the
Fifth or Fourteenth Amendments to the  
provision of Federal law which authorizes a service secretary to
separate 
enlistment,
has no property interest in continued 
however, have a liberty interest which prevents the military from
discharging him without due process 
if, as in Petitioner's case,
the discharge would impose a stigma.
In such a case, the due
process clause requires that the individual have an opportunity
to refute the charge against 
him.31
Since the essence of due
process rights is notice and an opportunity to 
respond,32 due
process requirements are satisfied by providing notice of the
proposed government action and an opportunity to respond, either
before or after that action is 

service.2g

He does,

taken.33

dd. A

1910.4B34  and the

licable provisions of SECNAVINST  
state that if an ADB finds that no reason for

in which the individual is entitled to certain

MILPERSMAN"
separation is supported by a preponderance of the evidence, the
individual may be discharged only if the separation authority
reyzocessing  for separation under the plenary authority
directs 
of SECNAV.
In such a case, the notification procedure must be
followed,37
procedural rights, such as notice of the proposed action and the
opportunity to submit a 
submitted to SECNAV for final action.
Petitioner's case, the ADB concludes that a reason for separation
is supported by a preponderance of the evidence but nevertheless
recommends retention, the separation authority may simply
recommend to SECNAV that the individual be separated for that
reason, notwithstanding the recommendation of the 
ADB.3g

statement,38 before the case is

However, if, as in

note 2.

ee. If a discharge is found to be improper or unjust, the

U.S. 319, 332  (1976).

record should normally be corrected only to show that the
27 Matthews v. Eldridge, 424  
28 Supra, 
29
786  (Fed. Cir. 
Scruggs, 942  
;;5  
31
;Zth,  408  U.S. 564, 573  

F.2d 1220, 1226 (10
Holley v.
United States,
Codd v. Velger, 429  

U.S. 624, 627 (1977)   (quoting Board of Regents v.

F.3d 1462, 1469-70 (Fed. Cir. 1997).

1993), cert.
:;I8

Cir. 1991); Rich v.

Secretary of the Army,

United States, 27  

Fed.Cl. 357, 364-65 
 511  U.S. 1030 (1994). See also  Guerra v.

Cir. 1984).

dgfied,
(4

Vierrether v.

F.2d 270,

[1972]).

124 

(1992), 

aff'd,

 6  F. 3d

 v.

(2), Pt. 6,  

United States, 41 

Educ.  v. Loudermill, 470 

Cleveland Bd. of 
33
Canonica
34 Encl.  
p 
35 MILPERSMAN 1910-710.
36 Separation by reason of secretarial plenary authority is authorized by
SECNAVINST 
;Tterest of the Service).

1[ P; and MILPERSMAN 1910-164 (Best

Fed.Cl. 516, 524 (1998).

U.S. 532, 546 (1985).

1910.4B,  Encl. 

(2), Pt. 1, 

C2c(2).

Id.
38  Id.,
3g Id.,

at Encl. 
(2), Pt. 4, 
at Encl. (2) Pt. 6, 

1[ B; and 1910-402.
I 

C2b(2); and 1910-710.

14

I, 

.

‘,

of4$bligated service, since
individual completed the last period 
an individual has no right to reenlist.
individual who is within two years of attaining eligibility for
transfer to the Fleet Reserve will be.retained on active duty
until he accrues enough active service to so transfer, unless he
is discharged under another provision of 

However, an

law.41

the

CONCLUSION:
Upon review and consideration of all the evidence of record,
Board) concludes that partial corrective action is warranted.
Specifically, the Board believes that although counsel's
contentions of legal error have no merit, Petitioner's discharge
was unfair and should be set aside.
The Board first rejects counsel's assertion that the MILPERSMAN
is impermissibly inconsistent with DOD and SECNAV guidance
concerning pleas of no contest or nolo contendere.
It is very
clear that when DODDIR 1332.14 was first promulgated in 1982, the
drafters intended that such a plea be viewed as an action
tantamount to a finding of guilty.
The fact that SECNAVINST
1910.4B does not specifically reference a no contest plea is
essentially irrelevant, especially since it is mentioned in the
applicable provision of the MILPERSMAN.
The circumstances of
Petitioner's plea are a perfect illustration of why such a plea
is viewed as being tantamount to a guilty finding.
After his
plea was accepted, he was sentenced to a fine and community
service, thus depriving him of both liberty and property.
The
action of the court also triggered a right of appeal; a right
normally associated with a conviction.
Accordingly, the Board
thus also rejects the contention that separation processing was
precluded since the civil court action had the effect of an
acquittal.
prohibition is contained not only in SECNAVINST 
in the MILPERSMAN, so there is no inconsistency in the two
directives.
could somehow be viewed as an acquittal,
an exception to the general rule if an individual is convicted in
state court and separation is approved by 
happened in Petitioner's case.

the directives provide
SECNAV---exactly  what

Finally, even if the action of the Florida court

Contrary to the implication of counsel, this

1910.4B,  but also

The Board also concludes that a civil conviction is binding on an
ADB, and no contrary finding on this issue may be made.
although a MILPERSMAN article contains this specific guidance,
the guidance is superfluous,
given the provisions of DODDIR
1910.4B and the MILPERSMAN which specifically
1332.14, SECNAVINST 
state that separation of a servicemember is authorized by reason
of misconduct due to civil court conviction.
make it crystal clear that the fact of the individual's
40 Maier v. Orr,
;Td.Cl.  449, 453 (1998).

F.2d 973 (Fed.Cir. 1985); Thomas

These provisions

Further,

States,

745 

10 U.S.C.A. 

$ 1176(a) (West 1998).

v.

United

42

15

i2

and whether or not the ind'vidual
The

conviction, or equivalent action, results in presumptively
eligibility for separation,
actually committed the underlying act is not relevant.
regulatory provisions that require the ADB to determine whether
allegations are supported by the evidence only authorize the ADB
to determine whether an individual has been convicted, not
whether the respondent committed the underlying act of
misconduct.
Accordingly, as it pertains to separations due to
civil conviction, the MILPERSMAN may be redundant but it is
neither inconsistent with higher-level directives nor improper.
The Board also finds no merit in counsel's contention that the
ADB was improperly prevailed upon to change its finding.
It is
perfectly clear that the members did so only after both the
recorder and defense counsel told the ADB that a finding of no
misconduct was improper,
given Petitioner's plea of no contest
and the governing MILPERSMAN provision.
Further, his counsel
made this concession earlier in the ADB proceedings.
In this
E's later testimony to
regard, the Board specifically notes LCDR 
the effect that the 
Petitioner's allegation that he had done nothing wrong.
However,
as previously noted, such a contention was essentially irrelevant
since he was processed for separation based on the conviction and
not the underlying act.

ADB's original finding was based on

given  the decisions of the Florida courts interpreting

it is not closely related to the military

The Board also rejected counsel's contention that since the
Florida statute to which Petitioner pled no contest does not
require indecency,
prohibition against indecent exposure,
violation of the state statute was improper because Petitioner
did no more than take off his shorts and shake sand from them.
However,
that statute,
not only with regard to the prohibition against publicly
displaying one's sexual organs, which is what the female
complainant alleged that Petitioner did, but also to the
statute's ban on public nudity.
direction that Petitioner have no unsupervised contact with
children,
guilty of displaying his sexual organs in front of children.

it seems clear that the court assumed that he was

it is clear that an indecency requirement exists

and separation based on a

Additionally, given the court's

The Board finds no merit in the contention that the action of
ASN/MtRA in directing Petitioner's discharge, notwithstanding the
recommendation of the ADB, was arbitrary and capricious.
Petitioner pled no contest to a civil offense for which
separation was authorized,
even though the ADB made a contrary recommendation can hardly be
considered irrational.
Although she gave no reasons for her
decision,
she concurred with the memorandum submitted to her by
CNP, which set forth an adequate rationale for the proposed

her decision to direct such action

Sinc e

42 Of course, the conviction is only one of the elements of separation due to
civil conviction (Infra, 

at 

P 

3~).

16

*

,’

ASN/M&RA had

The Civil

In this regard, the Board is aware

Further, as previously noted, none of the regulations

action.
she would have relied on were improper.
Additionally, contrary to counsel's contention, 
sufficient evidence before her to justify discharge.
Court Case Report sufficiently documented Petitioner's no contest
plea, and other documentation in the record provided some
background on the circumstances surrounding his offense and
overall record of service.
CNP's memorandum of 12 May 1999 specifically stated that
that 
Petitioner was initially accused of masturbating in front of
children, but nothing in the ADB record of proceedings so stated.
However, the ADB record does contain, as a defense exhibit, the
X0's letter to the effect that he was charged with lewd and
Accordingly, any error committed
lascivious acts with a minor.
by CNP or his agents in departing from the record was harmless.
ASN/M&RA could well
Further, given the nolo contendere plea, 
determine that Petitioner committed misconduct that was
sufficiently serious to outweigh his otherwise excellent record
of service in recent years.
Further, contrary to counsel's assertion, the record does not
reflect that the ADB reached a specific conclusion that the
circumstances of Petitioner's civil offense did not warrant
separation.
In fact, according to LCDR E, the ADB based its
recommendation
nothing wrong, 49artially on its belief that Petitioner had done
in other words, that he had not committed any
offense at all.
This, the Board believes, is different from a
conclusion that he committed an offense, but extenuation and
mitigating factors lessened its seriousness.
The Board also rejects counsel's contention that 
to consider the appropriate criteria for retention or his
potential for rehabilitation in her decision to discharge him.
There is nothing in any of the governing directives which
required her to list these criteria in making the decisional
document.
The Board therefore presumes that she acted properly
and in accordance with applicable regulations in performing her
duty.
Additionally, the Board finds no merit in the assertion that CNP
and 
to provide him with notice and an opportunity to respond to the
proposal to discharge him despite the favorable recommendation of
1910.4B and the MILPERSMAN distinguish
the ADB.
between two different scenarios.
In the first situation, an ADB
finds that the proposed reason for separation is not
substantiated by a preponderance of the evidence and the
individual must be reprocessed for separation under secretarial
plenary authority, in-which notice and an opportunity to respond
43 LCDR E said that the recommendation was also based on Petitioner's good
record, an appropriate factor for the ADB to consider on the issue of
retention 

ASN/MtRA deprived Petitioner of due process of law by failing

ASN/MtRA failed

Both SECNAVINST 

(Infra,  at 

93aa).

17

.

.

.’

When CNP forwards a case to 

ADB's finding that the reason for

ASN/MtRA,

The individual

This scenario must be

proceedingsyotice of the allegations against him;

In the second scenario, the ADB finds a reason for
are required.
separation is supported by the evidence but recommends retention,
in which case no procedural rights are provided and the case is
simply sent to SECNAV.
The Board concludes that this distinction does not violate the
due process rights of an individual such as Petitioner who falls
It must be kept in mind that he has
into the latter category.
already received the full panoply of due process rights during
the ADB 
representation by counsel; a hearing before an impartial panel at
which he is confronted with the evidence against him and given an
opportunity to cross-examine witnesses and testify on his own
behalf; and findings and recommendations by the ADB based on the
evidence presented to it.
he does so based on the 
discharge is supported by the evidence.
No new allegation is
raised, nor is another reason for separation for proposed; CNP
only recommends separation in lieu of retention.
has already, at the ADB, had an opportunity to rebut the charge
against him and failed to do so.
contrasted with the situation in which the ADB finds that the
reason for separation unsupported by the evidence and, in order
to overrule the ADB, separation processing must return to "square
one" with allegations of a new reason for separation--secretarial
plenary authority. Since this essentially constitutes a new
charge against the individual,
due process calls for notice and
an opportunity to respond, which is provided by the applicable
directives.
Despite the lack of merit in any of the contentions of legal
error, the Board nevertheless concludes that Petitioner's
discharge was fundamentally unfair because of the assurances he
received that if he pled guilty to a misdemeanor, he would not be
processed for discharge.
The Board initially notes that from the
very beginning, Petitioner has contended that he did not
masturbate in the presence of the woman and her young children
but only took his shorts off to shake sand from them.
assertion is especially significant because if true, he did not
violate the Florida statute at issue.
In addition, given the
contents of the advisory opinion, such an action would not
constitute violate military law.
violated some other state statute, a conviction or no contest
plea to such a violation would not result in separation
processing since his civil offense would not be closely related
to a military offense.
As indicated in the 10 August 1998 evaluation report, it appears
that substantial evidence exists to show that Petitioner did
masturbate in front of the woman and her children.
However, no
such evidence was introduced at the ADB proceedings.
Further,
the Board believes there are certain unresolved questions about
the incident at issue, for example,
why this woman was out so

Therefore, even if his actions

This

18

night.44
Petitioner's decision not to contest the

late in the evening with young children on a school 
Since Petitioner pled no contest, those issues were never
resolved at trial.
misdemeanor charge against him was clearly motivated, in large
part, by the assurances he received from his superior officers
that if he did so, separation processing would not be initiated.
Once he did so, not only was separation processing required, but
since he was processed by reason of civil conviction, he was
foreclosed from protesting his innocence of the underlying charge
at the ADB.
The Board is especially sensitive to the unfairness of the
situation given the circumstances surrounding Petitioner's case.
At the time of his separation,
faithful service.
superiors aboard SPRUANCE and the recommendation of the CO for
retention, he clearly was a very valuable member of the ship's
company.
Having found that discharge was unfair,
recommend a correction to the record to show that Petitioner
completed the four-year enlistment that began on 13 March 1998.
However, such a correction would leave Petitioner with about 19
years and 10 months of service,
required for transfer to the Fleet Reserve.
Since Federal law
now precludes the involuntary separation of individuals with more
than 18 years of active service prior to attaining eligibility
for transfer to the Fleet Reserve, the Board concludes that
correcting the record to show active service until 12 March 2002
would not provide adequate relief.
Accordingly, the record
should be corrected not only to show that Petitioner completed
his last enlistment, but that he extended the enlistment for a
sufficient period to attain 20 years of active service, and then
transferred to the Fleet Reserve.
RECOMMENDATION:

just short of the 20 years

Given the testimony at the ADB of his

he had provided nearly 18 years of

the Board would normally

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

Petitioner was not discharged on 3 February 2000 but continued to
serve without interruption on active duty.

b.  That the record be further corrected to show that on 11
Petitioner extended his enlistment for a period of

March 1998,
three months.

C . That the record be further corrected to show that

Petitioner transferred to the Fleet Reserve in the rate of 
on the date he first became eligible for such action.

GMGl

44 In 1998 Easter Sunday fell on April 12 (DATES OF ASH WEDNESDAY AND EASTER
SUNDAY, U.S. Naval Observatory,
http:!!aa.usno.navv.mil/data/docs/easter.html).
appear that the children would have been on Spring vacation on 30 March 1998,
the date of the incident at issue.

Astronomical Applications Dept,   available at
Accordingly, it does not

19

.

.

I. 

1) 

’

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 
o-f this Report 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.
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
5. The foregoing action of the Board is submitted for your review
and action.

Acting Recorder

Reviewed and approved:

2 0