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NAVY | BCNR | CY2006 | 06218-06
Original file (06218-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
          WASHINGTON DC 20370 - 5 100


                                             CRS
                                             Docket No: 6218-06
                                                                                  14 Septem be r 2006




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-me mb er panel of the Board for Correction of Naval Records, Sitting in executive session, considered your application on 16 August 2006. 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, regulation 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 15 November 2002 after more than three years of prior active service. On 4 October 2004 you lied to the person investigating charges about your employment with an escort service. On 20 October 2004, in a second statement, you admitted to lying in the first statement and said that you had been employed as a social escort after working hours. You also stated that you had been raped by an officer on the ship during a port call, fraternized with another officer by engaging in consensual sexual activity with him, and had danced Partially nude at parties.
On 23 February 2005 you received n onjudicial punishment (NJP) for fraternization and Performing nude as a dancer at a party. The punishment imposed consisted of forfeitures of $1058 per month for two months, restriction and extra duty for 45 days, and reduction in rate from petty officer second class (QM2; E—5) to petty officer third class (QM3; E-4). Your appeal of the NJP was later denied.
Subsequently, you were processed for separation by reason of
 misconduct due to commission of a serious offense based on the offenses for which you received NJP. However, on 13 July 2005, an administrative discharge board (ADB) found that you had not committed misconduct due to commission of a serious offense, and you were retained in the Navy.
The Board considered your contention, in effect, that you should be restored to QM2 since you were not guilty of the offenses for which you were punished. However, the Board believed that your commanding officer (CO) acted reasonably in your case in concluding, based on the evidence before him, that you committed the charged offenses, and NJP was the appropriate course of action. Furthermore, the Board concluded that the evidence you submitted, fails to show that your CO acted improperly or unreasonably. In this regard, the Board substantially concurred with the CO’s comments in his endorsement of 9 March 2005 to your appeal of the NJP. The Board also noted the favorable finding of the ADB, but found that in order to prove misconduct due to commission of a serious offense, it must be shown not only that the individual committed the offenses at issue but also that those offenses warranted separation. It appeared to the Board that the ADB may well have found only that your misconduct did not warrant separation. Additionally, an NJP and an ADB are separate and distinct proceedings and a favorable finding at an ADB does not serve to invalidate an adverse finding by the CO at NJP. 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 Di rector

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