DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 . Docket No: 4409-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NA VAL RECORD OF FORMER , Ref: (a) Title 10, United States Code, Section 1552 (b) SECNAVINST 5420.193 (c) SECDEF memo of 3 Sep 14, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD" (d) PDUSD memo of 24 Feb 16, "Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI" (e) PDUSD memo of 25 Aug 17, "Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" (f) USD memo, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations," of 25 July 18 Encl: (1) DD Form 149 w/attachments (2) DD Form 214 of 25 May 2020 (3) Suspect's Rights Acknowledgment of 14 Jun 2018 (4) Accused's Notification and Election of Rights of 20 Jun 2018 (5) Board of Inquiry Results of 2 Oct 2019 (6) Counsel Letter of Deficiency and Rebuttal Comments of 25 Oct 2019 (7) Commander, Letter of 13 Nov 2019 1. Pursuant to the provisions of reference ( a), Petitioner, filed enclosure ( 1) with the Board for Correction of Naval Records (Board), requesting an upgrade from an other than honorable discharge to a general characterization of service. References (b) through (f) apply. 2. A three-member panel of the Board, sitting in executive session, reviewed Petitioner's allegations of error and injustice on 28 July 2020 and, pursuant to its regulations, determined that the evidence submitted was insufficient to establish the existence of probable material error or injustice. 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, 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. It is in the interest of justice to review the application on its merits. c. Petitioner served in the United States Navy from 10 November 2012, until 25 May 2020. Petitioner's final duty station was at the Naval where he served as a Medical Services Corps officers in the grade of lieutentant. See enclosure (2) d. Petitioner's available service record indicates that on 14 June 2018, he was notified by Commanding Officer, Naval of the intent to impose nonjudicial punishment (NJP) on Petitioner for numerous allegations of violating the Uniform Code of Military Justice, to include failure to obey order or regulation (nine specifications), sexual assault (two specifications), conduct unbecoming (nine specifications), adultery and fraternization. See enclosure (3) e. On 20 June 2018, Petitioner elected his right to refuse NJP (enclosure (4)). Administrative separation proceedings were commenced, and Petitioner elected to appear before a Board of Inquiry (BOI). On 2 October 2019, a BOI unanimously determined that Petitioner committed misconduct (a military or civilian offense which, if prosecuted under the Uniform Code of Military Justice, could be punished by confinement of six months or more to include failure to obey order or regulation, sexual assault, conduct unbecoming, adultery, and failure to conform to prescribed standards of military deportment). The BOI recommended that Petitioner be administratively separated from Navy Service with an other than honorable discharge. See enclosure (5) f. On 25 October 2019, Petitioner's counsel submitted a Letter of Deficiency and Rebuttal Comments, and alleged in part that the command had withheld evidence obtained in its investigation. Counsel further alleged that Petitioner was processed for administrative discharge in violation of SECNAVINST 1920.6, and that his ability to prepare a defense was wrongfully degraded. Counsel requested reprocessing of Petitioner's case (enclosure (6)). On 13 November 2019, Commander, Navy forwarded the BOI results to Commander, Navy Personnel Command (PERS 834 ), along with the Letter of Deficiency and Rebuttal Comments. Commander, Navy addressed counsel's allegations of violation of SECNAVINST 1920.6D and as well as the allegations that evidence was wrongfully withheld from Petitioner. Commander, Navy noted that the evidence that counsel sought was not in the custody or the control of the convening authority, which is why it was not provided to the Recorder or to Petitioner's counsel. See enclosure (7) g. On 13 March 2020, the Chief of Naval Personnel (CNP) recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN (M&RA)) that Petitioner be separated with an other than honorable characterization of service. CNP noted that between April 2017 and October 2017, Petitioner used his position as a social worker at Naval Hospital to "prey on at least eight vulnerable female patients by inappropriately contacting them," having "sexual intercourse with (a) patient," and "committing sexual assault" by hugging two patients. On 19 March 2020, ASN approver CNP's recommendation and Petitioner was discharged from the Navy on 25 May 2020, on the basis of Misconduct-Serious Offense, with an other than honorable characterization of service. See enclosure (8) h. In Petitioner's request to the Board, he seeks an upgrade to his other than honorable discharge. He contends that the Naval Hospital investigation into allegations of misconduct against him were severely mishandled. Petitioner alleges that his cell phone was improperly seized and then "supposedly lost." He states that certain evidence was never produced yet entered into the BOI's record, that he was misguided at the hearing, that the entire case against Petitioner was not based on factual testimony, and that the outcome was predetermined. Petitioner provides a personal statement which reflects his version of events; he also submits multiple character letters in support of his request. See enclosure ( 1) i. Petitioner states that he has been a clinical social worker for over a decade and has never been in trouble in his life. Petitioner states that he would go back and change his actions if he could, and that he has dealt with depression, anxiety and insomnia. Since his discharge, Petitioner states that he has repaired the relationship with his wife, received professional counseling, and begun taking a master level class at the University of with an anticipated completion date in September 2020. See enclosure ( 1) j. The Board noted that Petitioner's application for correction raises a potential issue of a mental health condition during his military service. Petitioner states that during the course of his duties as a Medical Service Officer, he worked with two service members who ultimately took their own lives. Petitioner states that he did not realize at the time how profoundly the situation impacted him. There months after their passing, he transferred to Naval where the allegations of misconduct were made against him. he did not have a familiar support system and he was struggling with marital issues. k. The Board fully and carefully considered Petitioner's request in light of the Secretary of Defense's Memorandum, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder" of 3 September 2014, and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of 25 August 2017. The Board also reviewed the petition in light of the Under Secretary of Defense's memorandum, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations" of 25 July 2018. See references (b) through (f). 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. The Board carefully weighed all potentially mitigating factors, such as Petitioner's contentions that included, but were not limited to, that: (a) he was struggling with mental health issues following the loss of two service members with whom he was working prior to reporting to Naval Hospital Pensacola; (b) he had personal struggles including marital challenges and a lack of familiar support system; (c) he alleged procedural errors and bias throughout the administrative separation process, to include withholding and mishandling of evidence and a pre-determined outcome of his BOI; and (d) he provided character references and post-discharge treatment records. The Board weighed Petitioner's contention that he suffered from a mitigating mental health condition with impacted his conduct while at Naval but noted that the nature of his misconduct was such that he engaged in unprofessional and inappropriate relationships with multiple patients during the course of his duties as a social worker. The Board found that his misconduct was of such seriousness and frequency that even applying references ( c) through (f), Petitioner's misconduct could not be overcome by his claims of suffering from anxiety, depression and insomnia. The Board also considered Petitioner's claims regarding error and injustice with the BOI proceedings, and noted that Petitioner was represented by counsel and that he submitted a Letter of Deficiency which was reviewed by the convening authority as well as the CNP. In the CNP's recommendation to the ASN (M&RA), CNP noted Petitioner's contentions regarding the alleged withholding of evidence but reiterated the comments made by Commander, Navy regarding possession of the evidence. CNP concurred with the determinations of the BOI and recommended to the ASN (M&RA), that Petitioner be discharged with an other than honorable characterization of service. The Board noted Petitioner's allegations of error and injustice in the BOI procedure, but relied Commander, Navy contention that the evidence Petitioner sought was not in the possession of the convening authority. The Board concluded that Petitioner's BOI proceedings and the resultant other than honorable discharge were not executed in error or unjustly. The Board noted that the CNP' s 13 March 2020 letter references that Petitioner used his position as a social worker at Naval to prey on at least eight vulnerable women. Based on the nature of Petitioner's misconduct and the findings of the BOI, the Board determined that an other than honorable discharge was appropriate. Finally, even in consideration of Petitioner's post-discharge achievements, the Board found that clemency was not appropriate given the type of misconduct the BOI found that Petitioner committed. The Board concluded that the current discharge characterization is neither erroneous nor unjust. 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 19 June 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. 11/2/2020 Executive Director PRINCIPAL DEPUTY, ASSIST ANT SECRET ARY OF THE NAVY (M&RA) DECISION: (Performing the Duties of the Assistant Secretary of the Navy (M&RA)) Reviewed and Approved Board Recommendation (Deny Relief)