DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 7374-10
6 May 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 3 May 2011. The names and votes of the members
of the panel will be furnished upon request. 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.
The Board found that on 11 May 2007 you received nonjudicial
punishment (NUP) for two specifications of conduct unbecoming an
officer and a gentleman. In this regard, you were charged with
wrongfully and dishonorably having a sexual relationship, on
diverse occasions, with the wife of an enlisted servicemember
during two timeframes, specifically, “on or about November 2004
until May 2005,” and again on or about September until October
2006." The punishment imposed was a written letter of reprimand
and restriction for 30 days, which was suspended. The rec ra
reflects that on 17 May 2007 you were subsequently found guilty
of only one specification of conduct unbecoming an officer and a
gentleman for the period cited “between on or about November 2004
and on or about May 2005." The record further reflects that you
did not appeal the NUP, and as such, presumably accepted the
findings of guilt to the cited offense.
Subsequently, on 23 May 2007, your commanding officer submitted
the report of NJP to the discharge authority and further
requested you be detached for cause. On 6 June 2007 you
submitted a rebuttal to the detachment for cause and NJP in which
you stated, in part, that you pled guilty to one specification of
conduct unbecoming an officer and a gentleman from a single
incident that happened two years prior to the imposition of the
NIP. Nonetheless, in September 2007, you were processed for an
administrative separation by reason of misconduct due to
commission of a serious offense.
In February 2008, a board of inquiry (BOI) recommended discharge
under honorable conditions by reason of misconduct due to
commission of a serious offense. In August 2008 the foregoing
recommendation was approved at all levels of review.
Subsequently, your status as an officer in the rank of lieutenant
junior grade (LT(jg)) was reverted to an enlisted status paygrade
of E-9, and on 30 September 2008, you were discharged under
honorable conditions by reason of misconduct.
The Board concluded that your commanding officer's decision to
impose the foregoing NUP, and the punishment imposed, was
appropriate, and that it was administratively and procedurally
correct. The Board further concluded that because there is no
error or injustice in your case and you have not provided
evidence to support removal of derogatory material-from your
record, any and all adverse documentation regarding your
misconduct, to include the BOI proceedings, administrative remark
entries, fitness reports, and your administrative discharge
should remain a part of your naval record.
The Board considered the allegation that the offense for which
you pled guilty to and were found guilty of at NJP on 11 May 2005
occurred outside the statute of limitations under Article 43 of
the Uniform Code of Military Justice (UCMJ). However, the Board
concluded that the record of NUP clearly reflects that “on or
about May 2005” you wrongfully and dishonorably had a sexual
relationship with the wife of an enlisted servicemember, and as
such, does not reflect that the offense occurred outside the
statute of limitations. The Board noted the two timeframes
(i.e., March-April 2005 and September-October 2006) cited in the
NIP memorandum and concluded that they were secondary
administrative errors and did not negate the fact that your
misconduct/offense occurred within the two years of the
imposition of the NUP, which you pled guilty to. Accordingly,
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,
Ld
. DEAN P
\
Executive Dilvec
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