DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
				    2 NAVY ANNEX
WASHINGTON DC 20370-5100

						 CRS
Docket No: 854-06
28 June 2007
		____

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 13 June 2007. 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 an advisory opinion dated 7 March 2006 from the Deputy Assistant Judge Advocate General, which addresses the issues of abandonment of rank and the validity of a charged offense. A copy of the opinion is attached.

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. In this connection, the Board substantially concurred with the comments contained in the advisory opinion.

The Board found that you reenlisted in the Navy on 31 October 2002 after more than 16 years of prior active duty. A psychiatric evaluation conducted on 4 August 2003 diagnosed you with alcohol dependence and a personality disorder. On 29 October 2003 you received nonjudicial punishment (NJP) for disrespect toward an ensign and a lieutenant, failure to obey a lawful order, and absence from your appointed place of duty. The punishment imposed consisted of a forfeiture of $200 and reduction from petty officer first class (MM1; E-6) to petty officer second class (I~’ll’~i2; E-5), which was suspended for six months. On 26 November 2003 the suspension was vacated and you wee reduced to MM2, and you received an NJP for communication of a threat. The punishment imposed for that offense was restriction for 30 days. On 30 November 2005 you were transferred to the Fleet Reserve in the rate of MM2.

The Board rejected your unsubstantiated contentions to the effect that the punishments you received were unjust and disproportionate to the offenses, that you did not commit the charged offenses, and that it would be in the interest of justice to restore you to the rate of NN1. The Board concluded that your commanding officer was in the best position to resolve the factual issues raised in your NJP proceedings, and that he acted reasonably in concluding, based on the evidence before him, that you committed the charged offenses. Accordingly, 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 PFEIFFER
                           Executive Director	

2
DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL

WASHINGTON NAVY YARD
716 SICARD ST. SE SUITE 1000
WASHINGTON NAVY YARD DC 20374-5047	N REPLY REFER TO
	5800
Ser 20/122 7 Mar 2006

From:	Deputy Assistant Judge Advocate General Criminal Law Division (Code 20)
To:	Chairman, Board for Correction of Naval Records

Subj:	REQUEST FOR COMMENTS AND RECOMMENDATION 111Lfl1LI
	Ref:	(a)	BCNR letter Docket No. 00854-06, 13 Pebruary 06
			(c/end)
		(b)	Part IV, Para. 13c. (5), MCM (2005)
		(c)	CC, USS GUNNSTON HALL (LSD 44) ltr of 17 Nov 03

1.	Reference (a) requests an advisory opinion regarding the petition of MM2 (SW/AW) 1      ffi~i [JSN (Ret.) (Petitioner), for correction of his naval record. Specifically, reference (a) asks, “{d]id Ensign Eastburn’s use of obscenity during his phone conversation with Petitioner on 24 October 2003, constitute an abandonment of rank such that it Constituted a defense to the cha~ge of disrespect to an officer?” Additionally, reference (a) asks ~[g]iven the circumstances surrounding Petitioner’s return from leave on 24 October 2003, was it proper to charge him with unauthorized absence on that date?” This office completed a thorough review of this case and concludes that Ensign Eastburn’s use of profanity did not equate to abandonment of rank, the charge of unauthorized absence was proper, and Petitioner has otherwise failed to establish the existence of material error.

ABANDONMENT OF RANK

2.	Article 89 of the Uniform Code of Military Justice provides that “Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.” A full defense to the violation is provided when “[a] superior commissioned officer whose conduct in relation to the accused under all the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the
•	Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS ICO MM2 (SW/Aw)

~ TII~

officer who has so lost the entitlement to respect protected by Article 89.” Reference (b) applies.

3.	The courts have explained “there exists in military law a special defense for those accused of an offense against the military authority or rank of the victim. Disrespect toward a superior commissioned officer is such an offense. If the officer conducts himself in a manner that departs substantially from the required standards appropriate to the officer’s rank or position under similar circumstances, he loses the protection of the article proscribing the offense and the accused is entitled to a finding of not guilty. Manual for Courts—Martial, United States, 1984, [MCM] Part IV, P 13c. (5); United States v. Richardson, 7 M.J. 320 (C.M.A. 1979) . This defense, often styled as abandonment of rank, is an affirmative defense. United States
v. Struckman, 20 C.M.A. 493, 43 C.M.R. 333 (1971)” United States
v. Ivory, NMCM 94 0164 (unpublished opinion, not precedent) . To establish abandonment of rank, the officer’s conduct must be egregious. United States v. Leach, 22 M.J. 738, 740 (N.M.C.M.R. 1986)

4.	Abandonment of rank has been found in cases where racial slurs were used coupled with humiliation and segregation before other members of the military. Even in cases where racially insensitive language was used and the courts expressed disapproval, the convictions were not negated on the grounds of abandonment of rank.

5. In the present case, Petitioner was charged with violating Article 89 of the UCMJ and brought to Captain’s Mast. The charges involved Petitioner’s telephone conversation with his Division Officer, Ensign Benjamin Eastburn, USNR. At Mast, the Commanding Officer reviewed Ensign Eastburn’s statement explaining the circumstances resulting in the charge. In his statement, Ensign Eastburn indicates he told Petitioner at least five times to return to the ship, and describes Petitioner’s persistent refusal to recognize Ensign Eastburn’s authority. Finally, after repeatedly telling MM1 Stuart to return to the ship and to “emphasize a point MM1 Stuart was obviously not comprehending” Ensign Eastburn twice told Petitioner to “get the fuck back to the ship.” The Petitioner hung up the phone on Ensign Eastburn. Petitioner’s description of the events leading

2
•	Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS ICO MM2 (SW/AN)
-

up to Ensign Eastburn’s use of profanity was similar, but less detailed.

6.	Profanity alone does not, in and of itself, equate to abandonment of rank. Here, it appears Petitioner’s continued questioning of his authority frustrated Ensign Eastburn. It is true that a better course of action would have excluded the use of profanity. Its use, however, does not rise to the level of egregious conduct required to negate a violation of Article 89 of the UCMJ. It is also important to note the very light punishment Petitioner received at non—judicial punishment fos this offense and an unauthorized absence. The Commanding Officer imposed only $200 in forfeitures for one month and a suspended reduction in rank, far below the available authorized punishment. This may well have been in recognition of, and disapproval of, Ensign Eastburn’s use of profanity.

UNAUTHORIZED ABSENCE

7. To sustain a violation of Article 86(1) of the UCMJ there must be evidence (a) that a certain authority appointed a certain time and place of duty for the accused; (b) that the accused knew of that time and place; and (c) that the accused, without authority, failed to go to the appointed place of duty at the time prescribed. Here, Petitioner’ leave expired at 1600 on 24 October 2003. In accordance with ship’s policy, Petitioner called—in off leave at 1600 on 24 October 2003. Although the workday ended at 1700, Petitioner failed to arrive at his place of duty, and instead was working at his civilian job. Petitioner’s Division Officer, Ensign Eastburn, contacted him there and informed him of his responsibility to be at his workplace. Petitioner finally arrived aboard ship at 1730.

8. Petitioner’s place of duty at 1600 on 24 October 2003 was on board the USS GUNSTON HALL. Both Ensign Eastburn’s statement, and the Commanding Officer’s comments contained in reference (c), make it is clear that Petitioner was expected at his place of duty upon expiration of leave. The privilege of checking-in off leave did not negate Petitioner’s responsibility to be at his place of duty when leave expired during working hours, or request permission to extend leave to cover that period of time. Nowhere in the documents provided by Petitioner does he argue that he did not know the workday ended at 1700. In fact, the

3
•	Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS ICO MM2 (SW/AW)

Commanding Officer specifically stated that Petitioner was informed that the workday ended at 1700. Reference (c) applies. The Commanding Officer also explained that the crew’s working hours were extended in preparation of an upcoming inspection.

9. Petitioner seeks to invoke provisions of the Military Personnel Manual (MILPERSMAN) to support his argument that he was entitled to be away from his workplace after leave expired. Articie 1050-090 of the MILPERSMAN explains the administrative details of accounting for leave. It does not authorize members to remain away from their places of duty once leave has expired. There is simply no authority for servicemembers to unilaterally extend leave. Petitioner’s place of duty at 1600 on 24 October 2003, when his leave expired, was the USS GUNSTON HALL. He was not present, did not contact his chain—of—co~and to request an extension of leave, and therefore was in violation of Article
86, UCMJ.

10. Based on the foregoing, we do not believe Petitioner has carried his burden of establishing material error. If you have any questions regarding this case, the point of contact is LCDR Christopher Connor at (202) 685-7061 (DSN: 325)

C.	D. CONNOR
Acting

4