From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF ADC Ref: (a) Title 10 U.S.C. § 1552 (b) MILPERSMAN 1910-142 (c) BUPERSINST 1610.10D Encl: (1) DD Form 149 w/attachments (2) NJP Accused’s Notification and Election of Rights of 1 Nov 18 (3) NAVPERS 1626/7 Report and Disposition of Offenses(s) of 1 Nov 18 (4) NAVPERS 1070/613 Administrative Remarks of 1 Nov 18 (5) NAVPERS 1070/613 Administrative Remarks of 1 Nov 18 (6) CO, ltr of 4 Dec 18 (7) Petitioner’s memo of 12 Dec 18 (8) CO, ltr of 16 Apr 19 (9) Evaluation and Counseling Record for the reporting period 16 Sep 18 to 15 Sep 19 (10) DCNP ltr 1616 BUPERS-00B/399 of 26 Oct 19 (11) NAVPERS 1910/31 ADSEP Processing Notice of 20 Jan 20 (12) ASB Findings/Recommendation Sheet (undated) (13) Petitioner’s ltr of 30 Jan 20 (14) NPC memo 1610 PERS-32 of 12 Jun 20 (15) PERS-00J ltr of 29 Jun 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that her naval record be corrected by removing all references of her violation of the Uniform Code of Military Justice (UCMJ), Article 92 and Article 134 from her official military personnel file (OMPF). 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 18 March 2021 and, pursuant to its regulations, determined that the corrective action indicated below 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 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, found 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. On 1 November 2018, Petitioner received nonjudicial punishment (NJP) for violation of the UCMJ, Article 134 (Adultery). Petitioner acknowledged and waived her rights prior to NJP, elected to make a personal appearance before her Commanding Officer, waived her right to remain silent and pled guilty. The punishment was a written punitive letter of reprimand. Petitioner acknowledged her right of appeal; however, there is no record of her filing of an appeal. Enclosures (2) and (3). c. On 1 November 2018, was issued enclosure (4), an Administrative Remarks (Page 13) documenting her NJP for violation of UCMJ Article 92 (failure to obey order or regulation) and Article 134 (adultery). Also on 1 November 2018, Petitioner was issued enclosure (5), a Page 13 Counseling and Warning. The entry notified her that she was being retained in the naval service, and it identified deficiencies in her performance and conduct as violations of Article 92 and Article 134 of the UCMJ. d. On 4 December 2018, the Commanding Officer, submitted a Report of NJP, notifying the Commander, Navy Personnel Command (PERS-832) that NJP was imposed on Petitioner for violating the UCMJ, Article 134. Enclosure (6). In response, Petitioner submitted enclosure (7), a memorandum acknowledging that she had been found guilty to Article 92 and Article 134, UCMJ, but she argued that the 1 November 2018 Captain’s Mast was not due to her lack of performance or military duties, but her personnel (sic) choices off duty. She also asserted that she was an asset to her command and the P-8A community, and that she still had a significant amount of knowledge to offer her unit. e. On 16 April 2019, the Commanding Officer, submitted a request to PERS-832 for Petitioner’s detachment for cause by reason of misconduct for violation of the UCMJ, Article 92 and Article 134. Enclosure (8). f. Petitioner was issued enclosure (9), a Periodic/Regular Evaluation and Counseling Record (Eval) for the reporting period 16 September 2018 to 15 September 2019. Block 41 (Comments on Performance) included the following: “Member attended Commanding Officer’s NJP on 1 November 2018 for violation of UCMJ Article 134, Adultery.” Petitioner elected to not make a statement regarding the Eval. g. On 26 October 2019, the Deputy, Chief of Naval Personnel approved Petitioner’s DFC. Enclosure (10). h. On 20 January 2020, Petitioner was advised of administrative separation processing by reason of misconduct – commission of a serious offense pursuant to reference (b). Petitioner elected to consult and be represented by counsel at an administrative board, and to submit a written statement for consideration by the separation authority. Enclosure (11). i. The Administrative Separation Board (ASB) found, by vote of 3 to 0, the preponderance of the evidence did not support the basis for separation, and by vote of 3 to 0, recommended retention. Enclosure (12). j. On 30 January 2020, Petitioner requested that her current Commanding Officer to set aside her NJP, claiming, in part, that there were numerous legal errors, and citing the “no misconduct” finding of the ASB as supporting evidence. Enclosure (13). k. Petitioner contends that, due to clear legal error, the failure to allege a terminal element of the offense of Article 134 (adultery), UCMJ, all documentation pertaining to her 1 November 2018 NJP should be removed from her OMPF. Petitioner argues that without the terminal element being alleged, she was denied the opportunity to make a knowing and informed decision on her right to refuse NJP, plead not guilty, and appeal any finding of guilt. She further argues that her conduct was not prejudicial to good order and discipline or service discrediting, as determined by the ASB and factors in the Manual for Courts-Martial (2016), and therefore the punishment imposed at NJP was unjust. Petitioner also contends that she was never found guilty of or charged with violating Article 92, UCMJ. However, it has been erroneously documented in her record. l. Enclosure (14), the advisory opinion (AO), furnished by the Navy Personnel Command (PERS-32) recommended Petitioner’s request to remove her contested Eval be denied. PERS-32 noted that Petitioner’s Commanding Officer did not refer to a violation of Article 92, UCMJ in the Eval. Moreover, reference (c) provides that reporting seniors may comment on misconduct whenever the facts are clearly established to the reporting senior’s satisfaction. m. Enclosure (15), the advisory opinion (AO), furnished by the Navy Personnel Command, Office of Legal Counsel (PERS-00J) recommended partial relief with respect to the portion of Petitioner's request pertaining to documents containing reference to a violation of UCMJ Article 92. PERS-00J, however, found insufficient basis to grant relief with respect to the portion of Petitioner's request pertaining to her violation of UCMJ Article 134, Adultery, as no material error or injustice exists. Specifically, the NJP is presumed to be correct and proper, and Petitioner has provided nothing to overcome that presumption as it pertains to the record and references to her violation of UCMJ Article 134, Adultery. CONCLUSION Upon review and consideration of all the evidence of record, and especially in light of the AOs, the Board finds the existence of an error warranting partial corrective action. The Board substantially concurred with the PERS-00J AO that there is insufficient basis to grant relief with respect to the portion of Petitioner's request pertaining to her violation of UCMJ Article 134, Adultery, as no material error or injustice exists. However, partial relief is warranted by redacting the references to UCMJ Article 92 to remedy clerical errors committed in the drafting of documents that were later inserted into Petitioner’s OMPF. The Board also substantially concurred with the PERS-32 AO that the contested Eval at enclosure (9) is in compliance with reference (c), and that it shall remain as written and filed in Petitioner’s OMPF. In view of the foregoing, the Board determined that the reference to Petitioner violating Article 92, UCMJ shall be redacted from the documents at enclosures (4), (5), (7), and (8). The Board determined that no other documents in Petitioner’s OMPF improperly references a violation of Article 92, UCMJ. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by redacting “92 – FAILURE TO OBEY ORDER OR REGULATION” from enclosure (4), the Page 13 documenting her 1 November 2018 NJP. Petitioner’s naval record be corrected by redacting “UCMJ Article 92 (Failure to obey order or regulation) and” from the first paragraph of the entry at enclosure (5), the Page 13 administrative counseling and warning. Petitioner’s naval record be corrected by redacting “and 92” from enclosure (7), her 12 December 2018 memorandum. Petitioner’s naval record be corrected by redacting “and UCMJ Article 92” from enclosure (4), the 16 April 2019 request for Petitioner’s DFC. No further relief be granted. 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.