DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BUG
Docket No: 10195-10
23 June 2011
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 21 June 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.
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. .
You enlisted in the Marine Corps and entered active duty on 4
September 2001. On 5 May 2009, you were indicted by a civilian
grand jury for taking indecent liberties with a child (two
counts), first degree sex offense with a child (two counts),
and first degree rape of a child (two counts). You were then
notified that your commanding officer was recommending you for
administrative separation due to misconduct {commission of a-
serious offense (COSO)). You requestejyour procedural right to
an administrative discharge board (ADB). Your ADB found that
you had committed misconduct (COSO) and recommended an other
than honorable (OTH) characterization of service. Your
commanding officer agreed with the ADB’s finding and
recommendation, and on 4 March 2010, you were discharged with
an OTH characterization of service due to misconduct {COSO) ,
and assigned an RE-4 (not recommended for retention) reentry
code. On 9 June 2010, you were tried in civil court for taking
indecent liberties with a child, first degree sex offense with
a child, and rape of a child. The victim of these offenses
refused to testify against you, so the charges were dismissed.
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your prior
honorable service and civil court dismissal. However, the
Board concluded that your discharge should not be changed, your
promotion to pay grade E-6 should not be reinstated, nor should
you be reinstated on active duty due to your COSO. The Board
found the charges against you were dismissed only because the
victim would not testify against you. A dismissal is not
equivalent to a finding of not guilty. You are advised that no
discharge is upgraded due merely to the passage of time or post
service good conduct. 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,
W. DEAN PFERAF
Executive Dire
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