DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 00476-10
19 March 2011
This is in reference to your application for correction of your naval
record pursuant to the provisions of Title 10, 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 16 March
2011. 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. The Board considered the
advisory opinion from the Office of the Judge Advocate General, dated
19 January 2011, a copy of which is attached. Finally, the Board
considered your counsel’s rebuttal letter dated 1 March 2011.
After careful and conscientious consideration of the entire record,
the Board found the evidence submitted was insufficient, with
enclosure, to establish the existence of probable material error or
injustice.
On 9 April 2003, you pled guilty and were convicted at a general
court-martial (GCM) of two specifications of making false official
statements, wrongful appropriation, and 11 specifications of conduct
unbecoming an officer. You were sentenced to a dismissal from the
naval service.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as your
claim that you were wrongfully separated due to your sexual
orientation. However, the Board substantially concurred with the
comments contained in the advisory opinion. Further, the Board
believed that your claim that you were targeted for prosecution
because you admitted to being homosexual has no merit. You were not
charged with any Uniform Code of Military Justice (UCMJ) violations
relating to any alleged homosexual acts at your GCM. Furthermore, the
Board found that you pled guilty at your GCM violations. The Board
also noted that in response to your Article 138 complaint concerning
an adverse fitness report issued in June 2002, the GCM convening
authority (GCMCA) had already granted you partial relief by removing
some negative language pertaining to your pending court-martial and
further employment potential. Therefore, the Board believed that
further relief by completely removing the fitness report is not
warranted. Finally, the Board denied your request to be allowed to
retire. A review of your statement of service showed that you were
not retirement eligible either at the time you requested to resign in
2002, or after your conviction at the GCM in 2004. At that time, only
two options for retirement were possible: 1) resign your commission
and reenlist at the highest enlisted pay grade and retire, (which was
denied), or 2) complete 20 years of credible service as a reservist
including ten years commissioned service and retire ( you did not have
10 years of commissioned service). You did not meet either benchmark
as of 2002. On 23 January 2004, after your conviction, you were
placed in appellate leave status pending your appeal to the Navy-
Marine Corps Court of Criminal Appeals. On 15 August 2007, your
appeal was denied and you were separated with a dismissal due to your
conviction at a GCM. In view of the above, 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,
LD Ben?
W. DEAN PFEI
Executive Dintéc
Enclosure
Bra to: ri
‘ your resignation request explicitly acknowledged that you would not
receive retired pay even if your resignation were approved.
Additionally, the time you spent in appellate leave status pending
your GCM appeal, from 23 January 2004 to 15 August 2007, does not
count as credible service for retirement purposes.
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