DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 N A V Y A N N E X
WASHINGTON DC 20370-5100
CRS
Docket No: 3479-03
4 August 2003
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 30 July 2003. Your allegations of error and
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.
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.
The Board found that you reenlisted in the Navy on 11 September
1997 after more than eleven years of prior active service. The
record reflects that on 4 November 2001 you were convicted by a
summary court-martial of indecent assault on two Sailors. The
court sentenced you to reduction from petty officer first class
(AD1; E-6) to petty officer second class (AD2; E-5) and
restriction for 60 days.
On 22 November 2001 an administrative discharge board recommended
that you be separated with an other than honorable discharge by
reason of misconduct due to commission of a serious offense.
After review by the discharge authority, the recommendation for
separation was approved and you were discharged on 6 February
2002 with an other than honorable discharge by reason of
misconduct. At that time, you were assigned a reenlistment code
of RE-4.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your lengthy period of
prior honorable service, and the contention that you were
innocent and that the proceedings of the summary court-martial
were improper. However, the Board concluded that these factors
were not sufficient to warrant reinstatement or
recharacterization of your discharge given the seriousness of the
offenses. In this regard, the Board has no authority to disturb
the findings or sentence of a court-martial based on claims of
legal error.
Applicable regulations require the assignment of an RE-4
reenlistment code when an individual is discharged due to
misconduct. Since you have been treated no differently than
others in your situation, the Board could not find an error or
injustice in the assignment of your reenlistment code.
While the Board can review your reduction in pay grade to AD2 as
a matter of clemency, the Board determined that it was an
appropriate part of the sentence given the nature of your
offenses.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
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
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