DEPARTMENT OF THE NAVY


                    BOARD FOR CORRECTION OF NAVAL RECORDS
      2 NAVY ANNEX     TRG
                                 WASHINGTON DC 20370-5100


                                 Docket No:  4272—04
      5 October 2005

      From: Chairman, Board for Correction of Naval Records
      To:   Secretary of the Navy

      Subj:      REVIEW OF NAVAL RECORD

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

      End:  (1) Case Summary
              (2)      Subject’s naval record

      1.    Pursuant to the provisions of reference (a), Petitioner, a
      former enlisted member of the Marine Corps filed an application with
      this Board requesting, in effect, changes in the reason for discharge
      and reenlistment code. be changed.

      2.    The Board, consisting of Mr.
              reviewed Petitioner’s allegations of error and injustice on
      28 September 2005 and, pursuant to its regulations, determined that
      the corrective action indicated below should be taken on the
      available evidence of record. Documentary material considered by 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:

           a.     Before applying to this Board, Petitioner exhausted all
      administrative remedies available under existing law and regulations
      within the Department of the Navy.

           b.     Petitioner’s application was filed in a timely manner.

           c.     Petitioner enlisted in the Marine Corps on 26 August 2003
      at age 18. At that time, he answered “no” to all questions concerning
      a police record on the Questionnaire for National Security Positions.
      He indicated that he had never been charged with or convicted of any
      felony offense; there were no charges pending; and he had never been
      arrested, charged with or convicted of any other offense(s) not
      listed in the other categories. He completed recruit training and in
      January 2004 he reported to Camp Pendleton for further training.

           d.     A police report reveals that on 10 December 2003, a social
      worker called the local police department in Oregon and stated that
      she had learned that a 13 year old girl that had been raped,
      apparently in 2001. Petitioner was named as one of the
perpetrators Based on this report, an investigation was initiated.
Subsequently, Petitioner’s alleged co-actor admitted they hd had sex with
the girl and, at some point, the girl had been handcuffed. The victim, who
was then living in Minnesota, was interviewed and stated that the incident
occurred in 2002, and she was handcuffed and raped by Petitioner and his
friend. Based on this information, an arrest warrant was issued charging
Petitioner with rape, conspiracy to commit rape and kidnapping. Bail was
set at $250,000. On 8 January 2004, the local police presented the arrest
warrant to the staff judge advocate at Camp Pendleton. Petitioner was
interviewed by the Naval Criminal Investigative Service (NCIS) and admitted
to having sex with the girl while she was handcuffed, but stated that it
was consensual.


     e.     On 9 January 2004, Petitioner was notified of discharge
processing by reason of fraudulent enlistment and misconduct due to
commission of a serious offense. In connection with this processing, he
elected to waive the right to have his case heard by an administrative
discharge board. He was then returned to Oregon and was incarcerated. On 26
January 2004, the discharge authority directed an uncharacterized entry
level separation by reason of fraudulent enlistment and he so separated on
10 February 2004. At that time he was not recommended for reenlistment and
was assigned an RE-4 reenlistment code.

     f.     On 2 March 2004 the district attorney submitted a motion to
dismiss the charges against Petitioner because of the mental health of the
victim. He submitted letters from mental health providers confirming that
compelling her to participate in the prosecution would be detrimental to
her emotional health. This motion was approved and the charges were
dismissed without prejudice. Petitioner was then apparently released from
confinement.

     g.     Petitioner’s counsel states that there is absolutely no way that
her client could have known that criminal charges would be brought against
him after he enlisted in the Marine Corps. She points out that there is
some confusion as to whether the offense occurred in 2001 or 2002, and
states that Petitioner told the NCIS that he thought the sexual activity
had occurred in 2000. She also alleges that Petitioner told the NCIS that
the sexual activity was consensual, he thought the girl was older than she
actually was and he had refused to have continued contact with her. The
attorney contends that the girl’s mother was aware of the incident and
insisted that she have a pregnancy test. Counsel also points that her
family did not and has not filed any charges.

      h.    Petitioner states he was told that if the charges were


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dismissed, he could return to the Marine Corps. He states that he did so
only to be told that he had been discharged.

     i.     Regulations allow for discharge by reason of Secretarial
Authority when a discharge is warranted but no other reason for separation
fits the circumstances.

CONCLUSION:

Upon review and consideration of all the evidence of record the Board
concludes that Petitioner’s request warrants favorable action. The Board
agrees that at the time of enlistment, Petitioner truthfully answered the
questions on the security questionnaire. Since there was no fraud, the
Board concludes that separation by reason of fraudulent enlistment is not
appropriate.

However, the statement from the co-actor and Petitioner’s own statement
confirm that they had sex with a handcuffed 13 year old girl, and at the
very least it appears that his actions constitued statutory rape. Given
these facts, the Board believes that the Marine Corps could reasonably have
concluded that Petitioner’s further service was not desirable and discharge
was appropriate. Since discharge was appropriate, but he did not commit
fraud, the Board concludes that the reason for discharge should be changed
to secretarial authority. Given the circumstances, the Board also concludes
that the record supports the assignment of an RE-4 reenlistment code and a
change in that code is not warranted.

The Board further concludes that this Report of Proceedings should be filed
in Petitioner’s naval record so that all future reviewers will understand
the reason for the change in the reason for discharge.

RECONMENDAT ION:

a.    That Petitioner’s naval record be corrected to show that on 10
February 2004 he was separated from the Marine Corps with a reason for
discharge of Secretarial Authority vice the reason for separation now of
record.

b.    That Petitioner’s request for a change in the reenlistment code be
denied.

c. That this Report of Proceedings be filed in 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


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complete record of the Board’s proceedings in the above entitled matter.
ROBERT D. ZSALMAN      ALAN E. GOLDSMITH
Recorder    Acting Recorder

5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of Naval Records
(32 Code of Federal Regulations, Section 723.6(e)) and having assured
compliance with its provisions, it is hereby announced that the foregoing
corrective action, taken under the authority of reference (a), has been
approved by the Board on behalf of the Secretary of the Navy.





































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