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

 

CRS
Docket No: 7195-07
1 July 2008

 

Records, sitting in executive session, considered your
application on 16 April 2008. 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.

error or injustice. In addition, the Board considered advisory
opinions provided by the Acting Head, Enlisted Performance and
Separations Branch (PERS-832), Navy Personnel Command (NPC),
dated 15 October 2007, and an assistant legal counsel to the

Commander, NPC, dated 6 December 2007. A copy of each opinion is
attached.

 

The Board found that you reenlisted in the Navy on 11 March 2004
for a period of three years, with more than 17 years of prior
active service. The date of the expiration of your enlistment was
established as 10 March 2007, approximately five months after you
were scheduled to complete twenty years of active duty service.
On 12 September 2005 RC, the thirteen year old daughter of cw,
the woman with whom you were living at that time, and with whom
you had fathered a child who was RC’s half sister, reported to
school authorities that you had raped her on three occasions over
the preceding year, and that she decided to come forward after a
fourth attempt that had occurred several days earlier. She
reportedly resisted the fourth attempt, which you abandoned when
CW woke up unexpectedly. RC identified herself as your
“stepdaughter”, but her actual relationship to you is unclear.
dependency documents. In addition, you signed a Dependency
Application/Record of Emergency Data form on 14 November 2003 and
again on 2 April 2004, in which you claimed that RC was your
daughter. That claim is apparently false, as other records
indicate that her father is PC, a former paramour of cw.

On 15 September 2005, RC told a civilian police investigator that
you had forcibly raped her on three occasions, and touched her
breasts on fifty or sixty occasions. When questioned about those
allegations, you declined to provide a statement to civilian
police investigators.

On 7 February 2006 a Navy Family Advocacy Program (FAP) Case
Review Committee (CRC) determined that a case of sexual child
abuse had been substantiated against you. The decision was based
on a Superior Court of California, County of Riverside
Jurisdiction/Disposition Report, the report(s) of investigation
of the Riverside County Department of Public Social Services~
Temecula Child Protective Services, and the preponderance of

clinical information.

A Naval Criminal Investigative Service (NCIS) criminal
investigation of the rapes was initiated on 5 April 2006. on 15
June 2006, after being advised of your rights under Article 31b,
Uniform Code of Military Justice by an NCIS special agent, you

interviewed. After being asked if you would consent to providing
DNA samples, you declined; however, samples were then taken from

you involuntarily pursuant to a command authorization. As RC had

Stated that you might have ejaculated on her Mickey Mouse blanket
during one of the rapes, the NCIS had the blanket tested for the

presence of semen. No semen was found on the blanket which,

presumably, was washable.

On an unknown date, your request for transfer to the Fleet
Reserve effective 1 October 2006 was apparently approved. It is
unclear whether the official who approved the proposed transfer
was aware of the sexual child abuse allegations pending against
you; however, the proposed transfer was subsequently held in
abeyance or cancelled pending further investigation and final

disposition of RC’s allegations against you.

On 5 October 2006 the Headquarters Review Team (HRT) met to
consider your request for review and reversal of the
determination of the FAP CRC. The HRT unanimously denied your
request, after it determined that you had not provided any
additional information that would have resulted ina
substantially more favorable result for you. On 16 October 2006,
the Director, Personal Readiness and Community Support (N135),
Office of the Chief of Naval Operations, advised you that he
concurred with the determination of the HRT, and that the
decision of the HRT was considered final.

On 6 December 2006, a judge advocate officer of your command
reviewed your case. He determined erroneously that you had been
involuntarily retained on active duty beyond your enlistment, and
advised you to proceed to the Personnel Support Detachment for
further processing and transfer to the Fleet Reserve.

On 7 January 2007, you declined to voluntarily extend your
enlistment, which was scheduled to expire on 10 March 2007, and
acknowledged that your refusal to do so would result in your
separation from the Navy at the expiration of your enlistment.
Furthermore, you acknowledged that you would not be extended,
reenlisted or recalled to active duty without the express
permission of the Commander, NPC. On 16 January 2007, the
Commander, NPC directed the Commander, Amphibious Group Three, to
initiate mandatory administrative separation processing against
you for misconduct/commission of a serious offense, based on the
substantiated child sexual abuse allegation. After being advised
of your rights in connection with the separation processing, you
elected to appear before an administrative discharge board with
Civilian counsel, and waived the right to request transfer to the
Fleet Reserve in lieu of separation processing. In addition, you
again declined to voluntarily extend your enlistment beyond 10
March 2007 so that discharge processing could be completed. As
both your assigned military counsel and retained Civilian counsel
indicated that they would not be able to represent you at an
administrative separation board prior to 10 March 2007, you were
voluntarily discharged from the Navy on 10 March 2007 at the
expiration of your enlistment. You were voluntarily discharged
by reason of completion of required active service, and assigned
a reentry code of RE-4, which is required when a Sailor against
whom a charge of sexual child abuse has been substantiated is
discharged prior to the completion of administrative separation

processing.

The 15 October 2007 advisory opinion from the Acting Head,
Enlisted Performance and Separation Branch, NPC, which is
informal and conversational in tone, is to the effect that you
avoided being processed for discharge by reason of
misconduct/commission of a serious offense by refusing to extend
your enlistment, and voluntarily “electing to separate at EAOS”.
The author of the opinion speculated that had an ADB found that
you committed a serious offense, it would have forwarded its
findings to the Assistant Secretary of the Navy for Manpower and
Reserve Affairs with a recommendation that you “receive a pay
grade reduction going to the Fleet Reserve Status Since [you] had
reached the 20 year point.” He recommended that you “be allowed
to retire [sic] at the pay grade of E-5 without ceremony.” He did
not explain the basis for his opinion, or indicate whether or not
the Commander, NPC concurred with his personal feelings about how
your case should be resolved by the Board.

The author of the 6 December 2007 opinion, an assistant legal
counsel to the Commander, NPC, advised the Board that since there
is no evidence in your application or the documents submitted in
Support thereof that you “ever voluntarily requested transfer to
the Fleet Reserve”, you should submit your “voluntarily request”
to the NPC for action in accordance with the provisions of the
Navy Military Personnel Manual article 1910-166, which applies to
requests for transfer to the Fleet Reserve of Sailor’s undergoing
administrative separation processing. Those provisions no longer
apply to you since you have been discharged from the Navy and are
ineligible for administrative transfer to the Fleet Reserve at
this time.

The Board concluded that you have not demonstrated that you did
not rape RC, that you were discharged in error, or that the
interests of justice demand that your record be corrected to show
that you were transferred to the Fleet Reserve rather than

discharged from the Navy.

The Board found that transfer to the Fleet Reserve is permissive,
rather than mandatory. Transfers are governed by Chief of Naval
Operations Instruction (OPNAVINST) 1811.3, Voluntary Retirement
and Transfer to the Fleet Reserve of Members of the Navy Serving
on Active Duty, dated 17 December 2005, which announces the
cancellation of Secretary of the Navy Instruction (SECNAVINST)
1811.3M. The OPNAV instruction provides, in effect, that
authority to approve requests for voluntary retirement and
transfers to the Fleet Reserve rests with the Secretary of the
Navy and the President. Pursuant to a delegation of authority,
the Commander, NPC, is authorized to approve the transfer of
enlisted members of the Regular Navy to the Fleet Reserve who
request such action after completing twenty years or more of
qualifying service. Requests shall normally be held in abeyance
pending resolution of investigations. The instruction specifies
in paragraph 3b that transfers to the Fleet Reserve of enlisted
members in lieu of administrative separation is covered by
MILPERSMAN article 1910-166. The version of that article which
was in effect on 10 March 2007 provided, in effect, that
personnel awaiting disciplinary action, civil action, family
advocacy action, administrative discharge action, or who were
serving the sentence of a court-martial, could request waiver of
administrative separation processing in order to be eligible to

 

request transfer to the Fleet Reserve. Such requests did not
preclude or suspend disciplinary action, at the discretion of
their commanding officers. In all cases, the service member was

to be informed of the right to present a case to an
administrative board, which would make a recommendation to the
Secretary of the Navy concerning the member’s pay grade at
transfer, regardless of any other recommendation made by the
command, an administrative board, or the Commander, NPC. The

pay grade, as the Secretary deemed appropriate. In those cases
where the member did not immediately request a waiver of
administrative separation processing, the command would continue
the processing, and requests received thereafter could be denied
by the command or the Commander, NPC. The version of article
1910-166 which became effective on 11 October 2007 is
substantially the same as the previous version, although it adds
a discussion of the Secretary’s discretion to characterize the
service of a member being transferred to the Fleet Reserve in
lieu of separation processing as “Other Than Honorable”, if
warranted in cases of misconduct. You were informed of your right
to request transfer to the Fleet Reserve in lieu of separation
processing, as well as of the opportunity to extend your
enlistment so that there would be sufficient time to conduct an
administrative separation board, which could have determined that
you did not commit the alleged misconduct. You declined to
request transfer to the Fleet Reserve in lieu of separation
processing or to extend your enlistment, thereby waiving the
opportunity to be transferred to the Fleet Reserve in a reduced
pay grade, or upon the completion of administrative separation
processing.

In view of the foregoing, your application has been denied.

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,

\p
W. DEAN P
Executive D or

 

 

Enclosures