DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TRG
Docket No: 3927-08
28 May 2009
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 27 May 2009. 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.
On 24 October 2007 you received nonjudicial punishment (NUP) for
defrauding the Navy of basic allowance for housing (BAH) funds in
the amount of $49,037.43. The punishment imposed included a
reduction in rate to pay grade E-4, 45 days restriction and extra
duty. The imposition of forfeitures of pay was suspended.
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Subsequently you requested a 10 month extension of your
enlistment so that you could qualify for transfer to the Fleet
Reserve. On 21 December 2007, your commanding officer strongly
recommended that your request for an extension be denied. He
noted that the Naval Criminal Investigative Serve (NCIS) had
proved that the deception had lasted for at least 29 months, but
that circumstantial evidence indicated that the fraud may have
occurred for a, much longer period of time.
Since you had over 18 years of active service, the regulations
required the Chief of Naval Personnel make the decision to deny
Further service. After review, your request for reenlistment was
denied. You were honorably discharged on 5 April 2008 with 19
years, 4 months and 18 days of active service. At that time, you
were assigned an RE-4 reenlistment code.
In your application you contend that various service related
illnesses such as post traumatic stress disorder and sleep apnea
led to behavioral problems. Because of these problems, your wife
decided to live in California while you remained in Virginia. It
is clear that the BAH rates were higher in California than in
Virginia. You point out that you repaid the excess BAH prior to
the NUP.
The Board noted that the NCIS and your commanding officer
apparently believed that you made a knowing decision to request
BAH and knew that you were not entitled to those payments.
Further, you have not submitted any evidence to show that you
were not responsible for your actions. The Board believed that
if a case could be made in defense of the charge that you should
have requested a court-martial, however, you accepted NUP. Given
the circumstances, the Board concluded that the decision to deny
you further service was proper and there has been no abuse of
discretion in this matter.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
The Board believes that you are eligible for veterans benefits
for your various physical and mental problems based on your
service in the Navy. Therefore, if you have been denied
benefits, you should appeal that denial under procedures
established by the Department of Veterans Affairs.
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, >
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