ERAKTMENT GF THE WAVY
AF OOTP ey
Ox ase ROARD TOR COMRAOCTION OF NAVAL ROCONDE
Ey ee a al Ot S. COURTHOUSE ROAD, SUITE 1001
‘ is Jip: ARLINGTON, VA 22204-2490
ee ;
TIR
Docket No: 827-12
30 January 2015
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 26 January 2015. 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. In addition, the
Board considered the advisory opinion provided by the Deputy
Assistant Judge Advocate General (Administrative Law) dated 24
March 2014, and your counsel's response thereto, dated 19
November 2014.
Bfter careful and conscientious: consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice. - .
You entered on active’ duty in the Navy on 24 April 1998. You
served without disciplinary infraction until 25 December 2008,
when you were the subject of a pending trial by court-martial for
wrongful possession of child pornography. About. seven months
later, on 7 duly-2009, you were convicted by civil authorities
after you pled guilty to.and were found guilty of possession of
child pornography. You were seritenced to confinement for 40
months. - Do > #
Subsequently, you were administratively processed for an
; administrative separation by reason of misconduct. On 27 March
2010, -a Board of Inquiry (BOI) Getermined that you had committed
misconduct and made a recommendation to separate you with a —
general characterization of service,. and to allow your continued
service for retirement purposes, specifically, allow you to
retire with 20 years of active duty service. After review and
consideration of the recommendation from the BOI, on 27 July
2011, the Assistant Secretary of the Navy (Manpower and Reserve .
Affairs) directed your separation under honorable conditions by
reason of misconduct due to sexual perversion, and on 31 August
2011, you were so discharged after serving less than 20 years on
active duty service. .
an advisory opinion from the Deputy Assistant Judge Advocate
General (Administrative Law) states, in part, that your discharge
was proper even though your Certificate of Discharge or Release
from active Duty (DD Form 914). contained an administrative error,
that is correctable by the issuance of a DD Form 215. It also
states that you were not eligible for voluntary retirement
because you had less than 20 years of active duty service, and
that the BOI's recommendation for continued service to allow
retirement after 20 years of active duty service was beyond their
authority. Further, the advisory states that because the refusal
of issuing. permanent change of station orders, temporary duty or
temporary additional duty orders is within the discretion of the
command, no error or injustice occurred when such action was
taken in your case.
The Board, in its review of your record and application with its
supporting documentation, carefully weighed all potentially
mitigating factors, guch as your allegations that your discharge
was improperly effectuated, a BOL recommendation was not given
due consideration, and an injustice occurred when you were
refused orders that would allow you to reach 20 years of
retirement eligible service. Nevertheless, the Board concluded
- these factors were not sufficient to warrant relief in your case
because of the seriousness of your misconduct as a commissioned
officer. Further, the Board concluded that your allegations did
not amount to substantial evidence that reflects an injustice or
error occurred in your case. With that being said, the Board
substantially concurred with the comments contained in the
advisory opinion.
The Board also considered your diagnosis of post-traumatic stress
@isorder (PTSD) in light of the Secretary of Defense's September
3, 2014 guidance to Boards for Correction of Military Records
regarding discharge upgrade requests by veterans claiming PTSD.
Even though you are requesting a retirement vice an upgrade in
discharge, the Board Liberally considered whether your PTSD was a
causative factor in the misconduct that resulted in your
separation. After a full and careful consideration of the
matter, the Board determined that there was insufficient evidence
in the record to support a conclusion that a causal relationship
with the PTSD symptoms and misconduct exists. Specifically, the
Board concluded that the downloading of child pornography was not
caused by your PTSD and further determined that, even if there
| was a nexus between the PTSD and the downloading of child
pornography , the severity of the misconduct would substantially
outweigh any mitigation created by your PTSD. Accordingly, your
application has been denied.
It is regretted that the circumstances of your case are such that
tavorable 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,
ROBERT J. O'NEILL
Executive Director
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MEMBER SITTING TGEN 1 O T T O E N I 1 UOTHC VOTE OF THE BOARD 4 J L.-.-.-..........-.----------------: ISSUES A01.39 A02.09 A85.07 INDEX NUMBER A67.30 A61.00 --- I ' 3 4 1 1 I I i I EXHIBITS SUBMITTED TO THE BOARD ORDER APPOINTING THE BOARD APPLICATION FOR REVIEW OF DISCHARGE LETTER OF NOTIFICATION BRlEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE TAPE RECORDING OF PERSONAL APPEARANCE HE HEARING DATE 1 17 Nov 2006 1...