DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

TRG
Docket No: 8320-01
7 August 2002

Chairman, Board for Correction of Naval Records
Secretary of the Navy

REVIEW OF NAVAL RECORD OF

(a) Title 10 U.S.C. 1552

(1) Case Summary
(2) Subject's naval record

From:
To:

Subj:

Ref:

Encl:

Pursuant to the provisions of reference (a), Petitioner, a

1.
former enlisted member of the Navy filed an application with this
Board requesting that his record be corrected to show an RE-1
reenlistment code and to eliminate the adverse monetary
consequences caused by his improper discharge such as the
recoupment of the unearned portion of his reenlistment code.

The Board, consisting of Mr. Pfeiffer, Mr. Beckett and Ms.

2.
McCormick, reviewed Petitioner's allegations of error and
injustice on 23 July 2002 and,
determined that the corrective action indicated below should be
taken on the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.

pursuant to its regulations,

Documentary material

The Board, having reviewed all the facts of record pertaining

3.
to Petitioner's allegations of error and injustice, finds as
follows:

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 initially enlisted in the Navy for four years
He reenlisted for three years on 13 April 1994

on 3 August 1988.
and then for six years on 13 February 1997.
that he served in an excellent manner during his entire period of
service.

The record shows

On 11 August 1999, a warrant was issued for Petitioner's
He was charged with committing a felony based on an

d.
arrest.
accusation of  
appeared in court on 21 October 1999 and pled nolo contendere to
The court sentenced him to
a reduced charge of simple assault.
60 days in jail which was suspended conditioned upon good

sexual abuse by his 16 year old stepdaughter. He

behavior, payment of fines and costs and having no contact with
On 24 February the Family Advocacy Program (FAP),
the victim.
case review committee recommended a psychosexual evaluation and
that he attend a sex offender treatment program.

e.

On 7 March 2000 Petitioner was notified of separation

processing under other than honorable conditions by reason of
misconduct due to his commission of the serious offense of sexual
perversion as evidenced by the sexual battery of his
stepdaughter.
conditional waiver of an administrative discharge board (ADB) in
exchange for the issuance of an honorable discharge.
commanding officer stated in his endorsement on this request, in
part, as follows:

On 10 March 2000 Petitioner submitted a

The

(Petitioner) has performed his duties with great

His service record contains 11  

distinction.
of exemplary performance.
faith in his character;
support from his chain of command.
a Midshipman running mate while  
CAROLINA (CGN 37) and he served as a recruiter for over
two years.

l/2 years
I am not alone in expressing

he has the highest possible

onboard USS SOUTH

(He) was trusted as

I find his explanation of events to be credible.
His character as demonstrated by his current and prior
years of service as well as the willingness of Virginia
Beach to plea bargain support (his) version of events.
I believe that (when he was) confronted with his
options,
believed at the time to be in the best interest of his
entire family.  
contest"
to a lower charge.

(he) acted in a manner consistent with what he

. He choose (sic) to plead  

"no 

In view of the nature of this case, (he) is not

recommended for further naval service.
his exemplary military performance over eleven and a
half years of distinguished service, I strongly
recommended discharge with a characterization of
honorable.

However, given

On 31 March 2000 the general court-martial convening authority
(GCMA) denied Petitioner's request for a conditional waiver
because it was not authorized by the regulations which required
processing because it involved substantiated child sexual abuse.
GCMA directed that Petitioner be reprocessed for discharge by
reason for misconduct due to commission of a serious offense and
misconduct due to a civil conviction.

f.

Petitioner was notified of separation processing on 31

2

the commanding officer

March 2000 and requested that his case be heard by  an ADB.
letter to the ADB, dated 13 April 2000,
An ADB convened on
strongly recommended an honorable discharge.
4 May 2000 at the Transient Personnel Unit (TPU), Norfolk, VA and
found by a unanimous vote that Petitioner had not committed
misconduct due to commission of a serious offense but found that
he had committed misconduct due to a civil conviction and that
the misconduct warranted a general discharge.
the commanding officer of the TPU informed the Navy Personnel
Command that Petitioner had been issued a general discharge by
reason of misconduct on 26 May 2000 and stated that he concurred
with the finding of the ADB.

On 19 June 2000,

In a

Petitioner submitted an application to the

Naval

At that time, he stated, in part,

Dischzrge Review Board (NDRB).
as follows:

She had made this kind of
This time

On July 1st 1999 my daughter ran away from home
and left a note that if (I)  
contact the police
well they certainly did.
things would only get worse,
She made statements to her friends and the police that
I was sexually abusing her.
threat in the past but later retracted it.
the police and Social Services got involved and this
false claim took on a life of its own.
Social Services completely took what my daughter was
saying as fact without interviewing all parties
involved.
21st of October but a week before my lawyer called me
up and told me that the prosecution has serious doubts
about her telling the truth and this charge would not
hold up in court.
plead guilty to simple assault and (I) told my lawyer
that I (would) not plead guilty to anything.
explained what nolo contendere was.
because I did not want to have the rest of my family
and friends testify against my daughter and I knew that
(she) would realize what she did and would want to come
Also  the financial and emotional costs of
back home.
continuing this was starting to impact my family . . . .

I was to have a hearing on the charge on the

They asked my lawyer if I would

He then
I agreed to this

The police and

Petitioner concluded his statement by pointing out that the
Military Personnel Manual (MILPERSMAN) Article 1910-144 only
allows for discharge due to a civil conviction when the Manual
for Courts-Martial (MCM) authorized a punitive discharge for the
same or closely related offense,
warrant discharge, or the civil sentence includes confinement for
six or more months without regard to suspension, probation or
The MCM does not allow the issuance of a punitive
early release.
discharge following a conviction of simple assault. Petitioner

the specific circumstances

‘*

3

concluded his statement to NDRB stating that his stepdaughter
spent a period of time with her natural father and then resumed
On 10 July
normal family life with Petitioner and her mother.
2001, the NDRB agreed that the discharge was improper and
directed an honorable discharge and a change in the reason for
discharge to "Secretary Plenary Authority".
has been corrected to reflect this change.
to make any other corrections to the record.

Petitioner's record
NDRB had no authority

a

h.

Petitioner's points out in his application to this Board

that NDRB agreed that he was improperly discharged.
requests corrections to his record that will stop recoupment of
the unearned portion of his reenlistment bonus, will allow the
payment of separation pay and a change in his reenlistment code.

He now

i.

When an individual has been improperly discharged and no

other basis for discharge is available, the record should be
corrected to show that the individual was not discharged but
remained in the military until either the expiration of the
enlistment or until a discharge date is properly determined.
This is known as constructive service.
that any pay that becomes due as a result of this service be
offset by civilian earnings.
of enlistment, in cases such as this, is for the ‘best interest
of the service" or as set forth in the current regulations as
"Secretarial Authority".  

A discharge prior to the expiration

The regulations require

*

CONCLUSION:

He has not requested a

Since the discharge of 26 March 2000 is

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
The Board agrees with the conclusions of NDRB that
Petitioner was improperly discharged.
return to active duty but only those benefits that would flow
from a proper discharge.
improper, it should be cancelled and the record should show that
he continued to serve until he was properly discharged.
does not desire to return to active duty, the record should show
that he was honorably discharged by reason of Secretarial
Authority on 23 July 2002,
Concerning the reenlistment code, the Board believes that if he
had served the additional two years he would have earned a
recommendation for reenlistment and concludes that the RE-4
reenlistment code should be changed to RE-1.
The discharge
should be considered to be involuntary for the purpose of the
payment of separation pay.

the date the Board acted on his case.

Since he

The Board notes that Petitioner's conviction by civil authorities
has not been set aside and the ADB found that he had committed
misconduct due to that conviction.

Although, the misconduct did

.

4

.

:

discharae, the Board believes that documentation

not warrant  
concerning the 
Accordingly, the Board concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future
reviewers will understand the facts of this case and the reason
for the corrective action taken by NDRB and this Board.

misc&duct should remain in the record.

That Petitioner's naval record be corrected to show that

RECOMMENDATION:
a.
he was not discharged on 26 March 2000 but continued to serve on
active duty until 23 July 2002 when he was involuntarily
discharged with an honorable characterization of service and an
RE-1 reenlistment code.

That this Report of Proceedings be filed in Petitioner's

b.
naval  record.

It is certified that a quorum was present at the Board's

4.
review and deliberations,
and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

h

ROBERT D. ZSALMAN
Recorder

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

Reviewed and approved:

SEP 6 

21)@2

w

JOSEPH G.
Assistant  General Counsel
(Manpower and Reserve Affairs)

5