DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6371-20 Ref: Signature Date: From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER LCDR , USN, Ref: (a) 10 U.S.C. ยง 1552 (b) USD Memo, "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," 25 August 2017 (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: (l) DD Form 149 w/attachments (2) DD Form 214 (19831083 - 2000123 l) (3) CNP Memo Ser 834C/129 l, subj: Ratification and Extension of the Delay of Permanent Promotion to Commanding ICO [Petitioner], 7 Sep 99 (4) NAVPERS 1626/7, Report and Disposition of Offense(s), 7 Sep 99 (5) Petitioner's Memo, subj: Statement in Response to Punitive Letter of Reprimand, 25 Oct99 (6) NDW Commandant Memo Ser OOJ/6166, subj: Report of Nonjudicial Punishment ICO [Petitioner], 12 Nov 99 (7) R.J.LF, MSW, LICSW, LLC Letter, Diagnostic Summary, dtd 28 May 2015 (8) President, 801 Memo, subj: Record of Proceedings in the Board of Inquiry of [Petitioner], 22 Jun 00 (9) Petitioner's Memo, subj: Report of Board oflnquiry, 10 Jul 00 (l0) NDW Commandant Memo Ser NOOJ/6165, First Endorsement of Enclosure (7), subj: Record of Proceedings in the Board of Inquiry of [Petitioner], 7 Aug 00 (11) CNP Memo Ser 834C/108I, subj: Removal of your Name from the FY-99 Active Commander Line Promotion List, 15 Nov 00 (12) DD Form 149, dtd 8 July 2004, with attachments (13) BCNR Memo TRG Docket No; 5486-04, subj: Review of Naval Record of [Petitioner], 7 Dec 05 (14) ASN (M&RA) Memo, subj: Review of Naval Record ICO [Petitioner], 16 December 2005 (15) Memorandum Opinion in the case of [Petitioner] v. , Secretary of the Navy, U.S. District Court, District of Columbia, Civil Action No. 06-2147 (JOB), 14 March 2008 (16) Acting ASN (M&RA) Memo, subj: BCNR Petition of [Petitioner], 15 May 2008 (17) BCNR Memo, subj: Advisory Opinion ICO [Petitioner], 28 April 2021 (18) Response to Advisory Opinion, In the Matter of [Petitioner], BCNR Docket No. 5486-04, 1 July 2021 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (I) with the Board for Correction of Naval Records (Board) requesting reconsideration of the previously denial of his request for constructive service credit, along with all back pay and allowances, to enable him to qualify for retirement, and that his characterization of service be upgraded to honorable and his narrative reason for separation be changed to "Secretarial Authority." 2. The Board reviewed Petitioner's allegations of error or injustice on 16 July 2021 and, pursuant to its regulations, determined that no corrective action should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval record, and applicable statutes, regulations, and policies, to include references (b) and (c). 3. The Board, having reviewed all of the facts of record pertaining to Petitioner's allegations of error or injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to waive the statute of limitations and consider Petitioner's application on its merits. c. On l October 1983, Petitioner was commissioned as an Ensign in the Navy. He served continuously on active duty until his discharge more than 17 years later on 31 December 2000, rising to the rank of lieutenant commander. See enclosure (2). d. On 29 May 1992, Petitioner was arrested for soliciting a female undercover police officer to engage in sexual activity for money. See enclosure (3). e. On 12 March 1999, the Naval Inspector General (NAVIG) opened an investigation against Petitioner based upon a Navy Hotline complaint involving allegations of adultery, sodomy, conduct unbecoming an officer, and failure to obey an order.1 See enclosure (3). f. By memorandum dated 6 April 1999, the Chief of Naval Personnel (CNP) delayed Petitioner's permanent promotion to the rank of commander, which was to be effective 1 May 1999, pending resolution of the allegations against him. See enclosure (3). g. On 16 June 1999, the NAVIG substantiated five allegations against Petitioner. See enclosure (3). h. By memorandum dated 7 September 1999, the CNP requested that the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN (M&RA)) ratify and extend the delay of Petitioner's permanent promotion to commander. See enclosure (3). i. On 9 September 1999, the ASN (M&RA) ratified and extended the delay of Petitioner's I May 1999 permanent promotion to commander. See enclosure (3). j. On 7 October 1999, Petitioner received nonjudicial punishment (NJP) for violating the Joint Ethics Regulation on or about 24 March 1999 by using a government computer to view and transmit an indecent photograph of an unidentified male's nude buttocks and anus, in violation of Article 92, Uniform Code of Military Justice (UCMJ); two specifications of conduct unbecoming an officer and gentleman by wrongfully and dishonorably engaging in an intimate and indiscreet relationship with the married spouse of a U.S. Army officer on divers occasions between on or about December 1998 and on or about April 1999, and wrongfully and dishonorably associating and having intercourse with a teenage prostitute while on temporary additional duty in , on or about February 1999, both in violation of Article 133, UCMJ; and two specification of adultery by wrongfully having sexual intercourse with the two women named in the Article 133, UCMJ, specification above, in violation of Article 134, UCMJ. He was found guilty, contrary to his pleas, of each of these offenses and was awarded a punitive letter of reprimand. See enclosure (4). k. By memorandum dated 25 October 1999, Petitioner submitted a statement in response to his punitive letter of reprimand. In this response, he suggested that his adulterous relationships were not prejudicial to good order and discipline because he was legally separated and pending divorce from his spouse, as was the spouse of the U.S. Anny officer with whom he engaged in an adulterous relationship, and that his use of government computer to transmit a photograph of a naked man's buttocks did not constitute a violation of the Joint Ethics Regulation because the photograph in question was not pornography. See enclosure (5). l. By memorandum dated 12 November 1999, the Commandant, Naval District of Washington, recommended that Petitioner be removed from the promotion list for commander, and that he be required to show cause for retention in the naval service. In this memorandum, the Commandant explained why he did not agree with the defenses raised by Petitioner in enclosure (5). See enclosure (6). m. In late November 1999, Petitioner was treated at Naval Medical Center Emergency Department after experiencing suicidal ideations on 26 November 1999. He was diagnosed with an Adjustment Disorder. During a follow-up consultation with a mental health provider in December 1999, however, his diagnosis was updated to Major Depressive Disorder (Single Episode), with the triggering factors being Petitioner's separation and pending divorce, the threat of the loss of his job, pending litigation, adjustment to life-cycle transition, and the lack of a support system. See enclosure (7). n. On 1 June 2000, a Board of Inquiry unanimously substantiated the allegation that Petitioner committed misconduct due to commission of serious offenses, specifically violations of Articles 92, 133, and 134, UCMJ, The BOI also unanimously substantiated the allegation that Petitioner demonstrated substandard performance of duty due to his failure to conform to prescribed standards of military deportment 2. Upon making these findings, the BOI unanimously recommended that Petitioner be separated from the Naval Service based on misconduct and substandard performance of duty and that his service be characterized as general (under honorable conditions). See enclosure (8). o. By memorandum dated 10 July 2000, Petitioner requested to be permitted to remain on active duty for an additional 25 months in order to become eligible for retirement. In support of this request, he offered to terminate his shore duty early for detailing to a critically short, operational sea duty assignment. See enclosure (9). p. By memorandum dated 7 August 2000, the Commandant, NDW, forwarded the BOI results to the CNP, but non-concurred with the BOI's recommendation. Instead, he offered his "strongest possible recommendation" that Petitioner be retained on active duty, stating that he has been fully disciplined for his misconduct and that his past performance and future potential to the Navy warrants his retention. See enclosure (10). q. By memorandum dated 15 November 2000, Petitioner was officially notified that the Secretary of the Navy had removed his name from the Fiscal Year 1999 Active Commander List Promotion List. See enclosure (11). r. On 31 December 2000, Petitioner was separated from the U.S. Navy for misconduct with a general (under honorable conditions) characterization of service. See enclosure (4). s. On or about 12 December 2003, Petitioner submitted an application to the Board requesting that his discharge be set aside and that he be restored to active duty so that he may qualify for retirement benefits, or that he be granted sufficient constructive service credit to qualify for retirement. In the alternative, he requested that his characterization of service be upgraded to honorable 3. See enclosure (12). 2 Although the BOI substantiated substandard performance of duty on this basis, it unanimously unsubstantiated that basis for separation due to his failure to demonstrate acceptable qualities of leadership required of an officer in his grade. 3 Petitioner, through counsel, submitted a 22-page written brief with 50 separate enclosures, and argued, inter alia, that his administrative separation was unjust considering his many years of honorable service; that the misconduct underlying his discharge did not justify separation and the denial of retirement benefits; that Petitioner and the spouse of an Army officer with whom he engaged in an intimate relationship were both legally separated at the time of their relationship, and that their relationship did not adversely impact good order and discipline; that the charges against him were unreasonably multiplicious; and that recent changes to the Manual for Courts-Martial advised commanders to consider all relevant circumstances before determining whether adulterous acts were prejudicial to good order and discipline, or service discrediting. t. On 29 November 2005, the Board recommended in Docket No. 5486-04 that Petitioner's naval record be corrected to grant him sufficient constructive service credit to enable him to reach minimum retirement eligibility, and to reflect that he was retired from the Navy as of the earliest date that he would be eligible. In making this recommendation, the Board found no legal error in Petitioner's involuntary separation for misconduct. Rather, the Board found that relief was warranted because Petitioner's many years of exceptional service mitigated the misconduct for which he was separated to such an extent that the circumstances of Petitioner's discharge was unduly severe. The Board also found that Petitioner had been adequately punished for his misconduct since he had been separated without retirement benefits for almost five years at the time of the Board's decision. See enclosure (l 3). u. By memorandum dated 16 December 2005, the ASN (M&RA) disapproved the Board's 29 November 2005 decision and denied relief. In this brief memorandum, the ASN (M&RA) disagreed with the Board's conclusion that Petitioner's otherwise exemplary record mitigated his egregious behavior, and concurred with the decisions of the BOI and his predecessor. See enclosure (14). v. Petitioner subsequently filed suit in the U.S. District Court for the District of Columbia (DCC), requesting that the Court reverse the decision to disapproved the Board's recommendation to correct his naval record. On 14 March 2008, the DCC vacated the ASN (M&RA)'s decision and remanded Petitioner's case for further proceedings, finding that the ASN (M&RA) had failed to adequately explain the reason for the denial. In making this finding, the Court stressed that it expressed no view with respect to the merits of the ASN (M&RA)'s decision, but simply that the ASN (M&RA) must specifically address all of Petitioner's contentions. See enclosure (15). w. By memorandum dated 15 May 2008, the Acting ASN (M&RA) again disapproved the Board's 29 November 2005 decision, and denied relief in its entirety 4. In this memorandum, the Acting ASN (M&RA) addressed each of the Petitioner's contentions in turn. With regard to Petitioner's contention that he had been fully disciplined for his misconduct in NJP and the loss of his promotion to the rank of commander, the Acting ASN (M&RA) noted that an administrative separation is not considered to be discipline, and previous punitive action does not prohibit a subsequent administrative separation when appropriate. Addressing Petitioner's contention that NJP is intended to rehabilitate and discipline service members and should not be used to end their careers, the Acting ASN (M&RA) stated that the facts underlying NJP may form the basis for administrative separation. In response to Petitioner's contention that his charges were multiplicious, the Acting ASN (M&RA) stated that it was his conduct, and not the manner in which it was charged during his NJP, upon which her decision to uphold his administrative separation was based. Finally, in response to Petitioner's contention that changes to the Manual for Courts- Martial specified that adulterous conduct must be either directly prejudicial or good order and discipline or service discrediting, and that commanders should consider all relevant circumstances, the Acting ASN (M&RA) listed several factors not listed by the Petitioner to support the conclusion that Petitioner's conduct was prejudicial to good order and discipline or service discrediting. See enclosure (16). 4 The Aeling ASN (M&RA) who signed the 15 May 2008 memorandum was differenl lhan the ASN (M&RA) who signed the 16 December 2005 memorandum that the DCC had set aside. x. In December 2012, the same mental health provider who had diagnosed Petitioner with MOD in December 1999 again diagnosed him with MOD, this time recurrent, listing his marital separation and pending divorce from his second marriage as contributing factors. See enclosure (7). y. By letter dated 28 May 2015, Petitioner's mental health provider attributed Petitioner's current depressive state, at least partially, to the circumstances of the Acting ASN (M&RA)'s disapproval of the Board's favorable recommendation following what he described as a favorable ruling from the DCC. He upgraded Petitioner's diagnosis to Depressive Disorder (Severe). See enclosure (7). z. Petitioner bases his claim for relief on three factors. First, he asserts that the law has changed regarding extramarital conduct, allowing for the affirmative defense of legal separation which he asserts would have applied in his case. He contends that his case is not dissimilar to "Don't Ask Don't Tell" in this regard, as discharge upgrades are granted in such cases due to the change in policy. Second, he states that he has sole custody of his now-13 year old daughter, and he would like to remove the shame and stigma of his discharge and provide for her future to a greater extent that he is now able. Finally, he would like to one day be buried with the dignity of full military honors, primarily for his daughter's benefit. See enclosure (1). aa. Petitioner's application and record were reviewed by a qualified mental health professional, who provided an advisory opinion (AO) for the Board's consideration. The AO noted that Petitioner did not appear to assert that his mental health condition mitigated his misconduct, and that the evidence reflected that his depressive condition developed after and as a result of the consequences of his misconduct. It also noted evidence of an undated session with a mental health provider associated with the Department of Veterans Affairs, which suggested that Petitioner's symptoms were related to the "ongoing legal process related to [his] general discharge with associated unresolved thoughts/emotions about the end of his Naval career." The AO found that Petitioner's in-service records contained no evidence of a diagnosed mental health condition or psychological/behavioral changes which may have indicated a mental health condition, and that no concerns were noted throughout Petitioner's disciplinary actions, counselings, and administrative processing that would have warranted referral to mental health resources. The AO concluded that, although Petitioner carries a post-discharge diagnosis of depressive disorder, his in-service records lacked sufficient evidence to establish a nexus with his in-service misconduct. See enclosure (17). bb. On 1 July 2021, Petitioner, through counsel, responded to the above referenced AO. In this brief, Petitioner's counsel suggests that the absence of a recommendation in the AO regarding the remaining requested remedies is evidence that the Navy concedes that Petitioner is due full relief. After making this highly questionable claim, the response goes on to assert that Petitioner's mental health issues stem from his unjust discharge and from the action of the ASN (M&RA) denying him relief contrary to the recommendation of the Board. Petitioner's counsel further asserts that the shame and stigma related to Petitioner's discharge continues to adversely affect him and his daughter, and deprives him of career opportunities. This response also provided an example of another incident of misconduct for which the officer was able to receive his retirement, despite the fact that there was no affirmative defense such as in Petitioner's case. See enclosure (l 8). CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Board found insufficient evidence of any error or injustice warranting relief. Because Petitioner based his claim for relief in part upon his mental health condition, the Board reviewed his application in accordance with the guidance of reference (b). Accordingly, the Board applied liberal consideration to Petitioner's depressive condition, and the effect that it may have had upon his misconduct. The Board recognizes that Petitioner did not contend that his depressive symptoms contributed to his misconduct, but the Board applied liberal consideration in accordance with reference (b) regardless. Even applying liberal consideration, however, the Board found that Petitioner's misconduct was not mitigated by any mental health condition. It was clear from the evidence that Petitioner's mental health condition was likely a consequence of his misconduct, and not vice versa. Accordingly, the Board did not find that Petitioner's mental health condition mitigated the misconduct for which he was separated. Although the Board did not find that Petitioner's mental health condition mitigated his misconduct, it did consider the connection between Petitioner's discharge and his ongoing depressive symptoms among the totality of the circumstances to determine whether relief is warranted in the interests of justice, as discussed below. The Board was not persuaded by Petitioner's contention that relief is warranted due to a change in the law which would provide him with an affirmative defense to his misconduct under similar circumstances today. First, the affirmative defense of legal separation for the offense of Extramarital Sexual Conduct 5 under Article 134, UCMJ, requires that the legal separation be ordered by court of competent jurisdiction. While Petitioner provided evidence of a separation agreement with his spouse at the time, it was witnessed by a notary and included no indication of any court order. Accordingly, it is far from certain that the affirmative defense would be available to Petitioner under similar circumstances today. Even if the affirmative defense would apply today, however, the Board notes that the law has changed in other ways that could produce an even less favorable result under similar circumstances. Specifically, the offense of patronizing a prostitute has become an enumerated offense under Article 134, UCMJ, since the time of Petitioner's misconduct, and it appears that Petitioner's conduct with a teenage prostitute in would satisfy the elements of this offense. Accordingly, it is far from likely that Petitioner would face less severe consequences for his misconduct under similar circumstances today. Finally, the terms of the separation agreement provided by Petitioner specifically provided in paragraph 1 that "we remain married to each other until a court enters a divorce or dissolution of marriage, and that sexual intercourse by either of us with another is adultery (emphasis added)." Given this term of the separation agreement signed by Petitioner, the Board found that he could not have credibly believed that his conduct was not wrongful. 5 Extramarital Sexual Conduct has replaced Adullcry in the UCMJ . The Board was also not persuaded by the suggestion made by Petitioner's counsel that the failure of the AO issued by a mental health professional to mention any aspect of Petitioner's application other than mental health considerations evidenced a concession that Petitioner was due full relief. The mental health professional was not asked to provide an AO for aspects of Petitioner's application outside of her expertise. Accordingly, the Board found this suggestion to be without merit. Finally, the Board also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Board considered, among other factors, Petitioner's long and otherwise meritorious service as a commissioned officer in the Navy; that the Board previously recommended that Petitioner be granted relief in Docket No. 5486-04; that Petitioner's commander gave his strongest recommendation that Petitioner be retained, despite his misconduct and contrary to the recommendation of the BOI; that Petitioner developed depressive symptoms as a result of the consequences of his misconduct, and that those symptoms continue today and may have been exacerbated by the disapproval of the Board's previous recommendation for relief by the ASN (M&RA); that the law has changed with regard to the offense of Adultery, creating an affirmative defense that might have been available to Petitioner under similar circumstances today; that Petitioner has sole custody of his daughter, and would like to remove the shame and stigma of his discharge so that he can better provide for her; Petitioner's desire to someday be buried with full military honors; Petitioner's post-service record of employment and accomplishment; the nature of the misconduct for which Petitioner was discharged; and the passage of time since Petitioner's discharge. Even considering these potentially mitigating factors, the Board determined that no relief is warranted under the totality of the circumstances. Under the same circumstances, the members of this Board would not have recommended the relief as was recommended by its predecessor in 2004. It would have agreed with the conclusion of the ASN (M&RA) and subsequently the Acting ASN (M&RA) regarding the nature of Petitioner's misconduct. Petitioner's conduct reflected a significant violation of trust and demonstrated an utter disregard of the standards expected of an officer with his level of experience; the Board believes that his involuntary separation with a general (under honorable conditions) discharge was an appropriate consequence of his actions, even in light of his otherwise honorable service. Each of the Board members are senior civilian employees of the Department of the Navy, and none would characterize Petitioner's misconduct as minor. Further, Petitioner engaged in his misconduct years before he would otherwise have been eligible for retirement, so the Board was not persuaded that the denial of retirement benefits that were years away from vesting represented an injustice. The Board also found that the passage of time and changes to the law did not sufficiently mitigate Petitioner's misconduct to justify relief. Finally, while the Board sympathized with Petitioner regarding the depressive symptoms that he has endured as a result of the actions taken against him, it found that such symptoms were a foreseeable consequence of his misconduct, especially by an officer with his experience. The Board simply found that the consequences of Petitioner's misconduct were, and remain, entirely appropriate under the totality of the circumstances. RECOMMENDATION: In view of the above, the Board recommends that no corrective action be taken on Petitioner's naval record. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 8/10/2021 Executive Director ACTING ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) DECISION: Board Recommendation Approved (Deny Relief) 8/27/2021 Acting Assistant Secretary of the Navy (Manpower and Reserve Affairs)