DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3546-20 Ref: Signature Date Erom: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) SECNAVINST 5420.193 (c) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) Officer Appointment dated 20 August 2004 (3) NAVPERS Form 1626/7, 15 May 2018 (4) Board of Inquiry Report (BOI), 15 January 2019 (5) Deputy Chief of Naval Personnel Memo, subj: “ADMINISTRATIVE SEPARATION ICO [PETITIONER]”, 16 May 2019 (6) Separation Order, 11 July 2019 1. Pursuant to the provisions of reference (a). Petitioner, a former officer in the U.S. Navy Reserve (USNR), filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting an upgrade to his characterization of service from general (under honorable conditions) to honorable. 2. The Board reviewed Petitioner’s allegations of error and injustice on 4 September 2020 and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Enclosure (1) was filed in a timely manner. c. On 24 May 1999, Petitioner began a period of enlisted active duty. On 27 August 2001, received an honorable discharge to enter the Navy Reserve Officer’s Training Corps at University. On 20 August 2004, Petitioner accepted an appointment and was commissioned as an ensign. (Enclosure (2)). d. On 15 May 2018, Petitioner received nonjudicial punishment (NJP) for two specifications of frauds against the United States in violation of Article 132, Uniform Code of Military Justice (UCMJ), by submitting a false travel claim for $2,310 more than he was entitled for reimbursement, and forging a signature on the rental lease he used in support of this fraudulent travel claim. The adjudged punishment consisted of a written reprimand and a suspended forfeiture of pay. (Enclosure (3)). On 8 June 2018, Petitioner submitted a response to his written reprimand that read, in relevant part, “I take full responsibility for my actions which is why I did not appeal the punishment awarded during the NJP hearing. I realize I let everyone down, my command, my family, and myself” e. By memorandum dated 29 May 2018, Petitioner’s commanding officer recommended that he be required to show cause for retention in the USNR. On 15 January 2019, a Board of Inquiry (BOI) unanimously found that the preponderance of the evidence supported Petitioner’s alleged misconduct (violation of Article 132, UCMJ) and substandard performance, and recommended that he be separated from the Naval Service with a general (under honorable conditions) characterization of service. (Enclosure (4)). On 16 May 2019, the Assistant Secretary of the Navy for Manpower and Reserve Affairs approved the recommendation of the BOI. (Enclosure (5)). Petitioner’s discharge from the USNR was effective on that date. (Enclosure (6)). CONCLUSION: After 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. In addition to reviewing the Petitioner’s application for error or injustice, the Board also considered Petitioner’s case in light of Reference (c) to determine if equitable relief is appropriate. In this regard, the Board considered all potentially mitigating factors, including but not limited to the Petitioner’s contentions that: a. Petitioner was “bullied, intimidated and ... investigated for fraternization” for four years in retaliation for raising perceived mismanagement and leadership issues within the after a junior Sailor facing administrative separation requested his assistance in 2015. b. As a result of this treatment by the leadership of , Petitioner was forced to file over half a dozen Inspector General and Congressional complaints, but no action was ever taken against or the USNR. c. Petitioner was motivated to falsify the lodging receipt that resulted in his NJP and administrative separation because the Navy refused to reimburse him for entitlements that he believed he was due. Specifically, Petitioner asserted that he was entitled to per diem while on Active Duty for Training (ADT) orders at in , but that as part of its retaliation against him leadership refused to provide it by wrongfully determining that he was no longer a resident of due to the amount of time he had spent in (approximately 10 sets of ADT orders). The efforts to prove his status as a resident cost him time and money, and he was completely dependent upon his USNR salary at the time. Accordingly, Petitioner asserts that he falsified the lodging receipt to expedite the process of reimbursement. d. Neither the Admiral who issued Petitioner’s NJP, nor the BOI which recommended that Petitioner be separated from the Naval Service, eonsidered the issues that Petitioner had with leadership or how they contributed to his misconduct. Both of them focused only on the misconduct and did not consider Petitioner's side of the story. e. The BOI demonstrated bias by asking about Petitioner's family situation, and inappropriately recommended to separate him based upon that status. f. Petitioner asserts that the medical department failed to review and sign his 2019 Personal Health Assessment (PHA). As a result, the Petitioner's most recently signed PHA is from 2018, and he must go through the Military Entrance Processing Station in his efforts to reenter the military because his most recent valid PHA is too old. Petitioner asserts that he filed a Congressional complaint regarding this failure, but that it wasn’t investigated. g. Due to his separation from the USNR, Petitioner had to file bankruptcy and his house was foreclosed. He believes that he has more than paid the price for his actions, while his chain of command was never held responsible. h. Petitioner asserts that the Army and Air Force Reserves, as well as several State National Guard units that he has applied to will not consider his application due to the characterization of his service. In addition to the assertions made by the Petitioner above, the Board also considered the Petitioner’s 20 years of service to his country. It noted that he started as an Enlisted Sailor, received an ROTC scholarship, and served on active duty as an officer and for 10 years in the USNR. and that he had seven deployments and numerous sets of orders. The Board also considered the fact that Petitioner accepted responsibility for his actions. The Board found no error or injustice in the Petitioner's separation from the USNR or in the characterization of his service. It found both the NJP and the BOI proceedings to be legally and factually sufficient, and identified no substantive, evidentiary, or procedural defects that prejudiced him. In this regard, the Board found insufficient evidence to conclude that the adverse actions taken against Petitioner were improperly motivated, that the Petitioner's own misconduct triggered his administrative separation, and the nature of his misconduct more than justified his separation from the USNR and the characterization of his service. Accordingly, the Board concluded that Petitioner’s separation processing was in compliance with all Department of the Navy directives and policy at the time of his discharge. As noted above, the Board found insufficient evidence to support the Petitioner’s assertions of command misconduct, improper motives or abuses of discretion in the investigating, handling, or processing of his NIP, BOI, or discharge. In fact, the Board found Petitioner’s assertion that the BOI did not consider the circumstances that he described to be false given the extensive testimony he presented during his BOI. Even accepting all of the Petitioner’s contentions as true despite the lack of such evidence, however, the Board would still recommend granting no relief. The Board was not persuaded that the command misconduct that he described, even if true, would justify or sufficiently mitigate the Petitioner’s own misconduct so as to warrant relief. In this regard, the Board noted that Petitioner was an experienced field grade officer who knew, or should have known, that such conduct is unacceptable under any circumstances for a USNR officer. Accordingly, even considering all of the potentially mitigating circumstances in light of the guidance provided by Reference (c), the Board did not believe that any equitable relief was appropriate at this time. BOARD RECOMMENDATION: That Petitioner’s request be denied. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 20 May 2020. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 11/20/2020