DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7797-20 Ref: Signature Date Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your applications on 10 September 2021. The names and votes of the members of the panel will be furnished upon request. 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, relevant portions of your naval record and applicable statutes, regulations, and policies. The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. The Board carefully considered your request to correct your official military personnel file (OMPF) as follows: (1) reinstate your promotion to chief petty officer; (2) remove your 19 September 2019 nonjudicial punishment (NJP) and all associated documents; (3) remove your Evaluation and Counseling Record (EVAL) for the reporting period 13 September 2019 to 19 September 2019; and (4) remove your EVAL for the reporting period 20 September 2019 to 29 January 2020. The Board noted the Commanding Officer (CO), launched a preliminary inquiry (PI) on 17 September 2019 after the legal officer reported suspected fraternization between you and an ensign onboard . After interviewing numerous witnesses and reviewing available evidence, the investigating officer recommended NJP due to violation of the Navy’s fraternization policy. On 19 September 2019, you received NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey an order or regulation-OPNAVINST 5370.2D-fraternization) both onboard the and on the island of . Your CO found you guilty of two specifications of violating Article 92 and awarded you reduction to the next inferior pay grade; restriction for 45 days; extra duties for 45 days; and forfeiture of half month’s pay for two months. On 26 September 2019, you appealed the NJP to Commander, , contending the punishment was unjust and disproportionate. After a thorough review of your appeal, the evidence presented, and the CO’s endorsement of 7 October 2019, found the punishment imposed was neither unjust nor disproportionate, that your CO did not abuse his discretion, and there were no legal or factual errors that materially prejudiced any of your substantive rights. On 12 November 2019, the denied your appeal. On 16 November 2019, your CO submitted a Report of NJP to Navy Personnel Command (PERS-832) and indicated his intention to pursue further administrative actions. On 22 November 2019, you signed a special EVAL for the reporting period 13 September 2019 to 19 September 2019 that reflected your 19 September 2019 NJP and the conclusion of the proceedings on 12 November 2019. Upon transfer to , you were issued a not- observed (NOB) detachment of individual EVAL for the reporting period 20 September 2019 to 29 January 2020 signed by the Executive Officer (XO). On 25 February 2020, you submitted a complaint of wrongs under Article 138, U.S. Navy Regulations, against the CO, alleging harassment, which was rejected by the CO due to improper submission because you failed to request redress prior to submitting the complaint. On 5 March 2020, you submitted a request for redress to the CO, , specifically requesting your NJP be set aside. The record does not record the CO’s response but reflects you submitted a revised complaint of wrongs under Article 1150, U.S. Navy Regulations, on 16 April 2020. You alleged harassment and requested reinstatement of rate, to have the 19 September 2019 NJP over turned, removal of the EVALs documenting the NJP and your detachment from the command, and a formal investigation of . Your complaint was forwarded by the CO, , , on 29 April 2020. On 18 May 2020, the CO, commented that your complaint was “effectively a second NJP appeal disguised as a complaint of wrongs,” untimely, failed to comply with Article 1150, and lacked merit. Further, the CO, noted the primary claim was against another respondent; the XO, and reporting senior for your detachment EVAL. On 5 June 2020, the General Court Martial Convening Authority (GCMCA), , provided you an opportunity to review and rebut the CO’s response, and on 15 June 2020, your rebuttal response was submitted. After proper endorsement by the first and second endorsers, the determined the complaint of wrongs was defective because the only proper request for redress, the removal of your NOB EVAL, was not against the CO, but instead, the XO, who was not the subject of the complaint of wrongs. The determined the request to overturn the NJP, reinstatement of rate, removal of the NJP EVAL, and formal investigation of were not proper subjects for a complaint of wrongs as defined by JAG Instruction 5800.7F, Chapter III. As required by Article 1150 and JAG Instruction 5800.7F, Chapter III, the Office of the Judge Advocate General (OJAG) Administrative Law Division (Code 13) reviewed the GCMCA’s action on your complaint and found it to be in substantial compliance with the stated references and not an abuse of discretion. The Board further noted you submitted a complaint to the Navy Inspector General (IG) on 9 September 2020. On 19 January 2021, the Office of the Naval Inspector General (NAVINSGEN) notified you in writing that your complaint had been closed. After an investigation into your allegation of reprisal under Title 10 United States Code, Section 1034, “Military Whistleblower Protection Act,” the NAVINSGEN determined there was “no inference of causation between the protected communication and the personnel actions” and recommended dismissal of your complaint. The Department of Defense Inspector General (DoD IG) conducted a thorough review of your complaint and concurred with the recommendation to dismiss the case without further action. The Board considered your contention, as stated on your submitted DD Form 149, that actions taken against you by the chain of command were “unjust, unfair, and did not follow instructions and regulations” and the chain of command went against the Navy’s core values and ethos and disregarded the regulations in order to “punish” you. You further contend you have “addressed these issues through the proper chain of command previously” but your complaint “was not acknowledged and blatantly ignored.” The Board also considered the contentions explained within the supporting documentation you submitted with your DD Form 149, specifically, the IG complaint, complaint of wrongs, and NJP documentation. Starting with the 19 September 2019 NJP, which is the initial action that predicated your contentions that your CO harassed you, the Board considered your numerous contentions which were first articulated in your NJP appeal and then reiterated and repeated in the complaint of wrongs and IG complaint. Specifically, the Board considered your contention the NJP was based on falsified statements by the main witness, legal officer, and the CO. You specifically attempt to point out the discrepancies and inconsistencies in the witness statements as well as in the CO’s factual explanation of your wife’s communication with the ship. Further, the Board considered your contention that you were deprived of due process because the misconduct adjudication process was rushed through in three days which also caused numerous administrative errors such as improper completion of your rights acknowledgement statement. The Board also considered your contentions that intimidation was used to coerce witness statements; the CO abused his power by issuing a military protective order; your Article 31 UCMJ rights were violated; your Fourth and Fifth Amendment Constitutional rights were violated when your Outlook data files (PST) were wrongly copied from your government computer and you were forced to provide the password to access the files; JAGMAN 5800.7F was violated because forms were not correctly prepared; and a conflict of interest existed because the legal officer was the individual who initiated the investigation into your misconduct. Additionally, the Board considered the contentions you raised regarding the Disciplinary Review Board (DRB) and NJP processes, to include the allegation the DRB was held at the same location as your chief pinning in an attempt to “belittle” and “demean” you, and the NJP was handled with a lack of confidentiality. Lastly, the Board also considered the contentions you raised of actions that happened after the NJP, to include initiation of other administrative actions, the “unjust” start to your restriction, and the posting of your NJP in the ship’s plan of the day. The Board, however, concluded that you have not shown, by a preponderance of evidence, the existence of probable material error, substantive inaccuracy, or injustice to overcome the presumption of regularity in the command’s handling of the NJP process or to warrant your requested relief. The Board noted the command’s response to each allegation raised as well as the explanations and analysis done by the GCMCA, NAVINSGEN, and DoD IG and concluded there was insufficient evidence of error or injustice in the adjudication of your misconduct at NJP and the resultant actions. With respect to your NJP, the Board also considered your contention the CO “never proved good order and discipline were directly and obviously eroded” and therefore you could not be guilty of fraternization because that is a required element. However, the Board noted OPNAV Instruction 5370.2D states that personal relationships between officers and enlisted members which are unduly familiar and do not respect differences in rank and grade are “prohibited and violate long-standing customs and traditions of the naval service.” The Board concluded “proof” that your relationship with the ensign eroded good order and discipline was not required to determine, by a preponderance of the evidence standard, that you committed misconduct. The Board also carefully considered the contention raised in your complaint of wrongs that you were harassed by the CO, and he “repeatedly acted outside the boundaries of guidance and instructions, abused his power, and lied with means to continuously harass [you], causing professional and personal detrimental harm.” You further contend he used his power to “create a toxic work environment” that not only affected you, but also harmed many others. Additionally, you contend he used periodic EVALs as a “punishing tool.” The Board also considered your contention the CO allowed the Command Master Chief (CMC) to bully other sailors and to threaten any chief petty officers who spoke on your behalf. Further, the Board considered your contention that you were not afforded “fair treatment” due to the CO’s and CMC’s “personal ill feelings” toward you. The Board further considered your contention the CO harassed you by initiating other administrative actions, such as detachment for cause and removal of your navy enlisted classification (NEC) as an independent duty corpsman, and by threatening administrative separation processing. Further, the Board considered your contention you were “targeted with harsher punishment” than others that received punishment and others that were involved in well-known shipboard relationships. Additionally, the Board considered your contentions that the CO’s reference to you as one “still married to another woman” was an example of his continuous harassment and that he consistently “twist[ed] his words” to “further damage [your] reputation and character.” Further, you contend that because he is the first CO or supervisor “to ever question [your] character, judgment, or integrity,” it is clear that you were “personally attacked and treated differently.” However, the Board noted you did not provide any evidence, beyond your own statements, and concluded there was insufficient evidence to establish your CO harassed you, acted unjustly or with a bias against you, or created a toxic work environment. As part of the CO’s harassment, you contend you received a NOB EVAL upon detachment from the ship which violates BUPERS Instruction 1610.10E. The Board however noted the CO was not your reporting senior on the detachment EVAL, but, even applying your contention that the CO is responsible for the XO, the Board determined there was insufficient evidence of an error or injustice. Specifically, the Board noted BUPERS Instruction 1610.10E authorizes the reporting senior to submit a NOB report for any period if he does not feel that there has been enough observation to grade with confidence. With regard to your request to be reinstated to chief petty officer, the Board concluded the NJP was valid and your reduction in rate was authorized and appropriate. The Board further determined there was insufficient evidence of an error or injustice in the CO’s adjudicated punishment and concluded the punishment imposed was neither unjust nor disproportionate. The Board carefully considered each of the contentions noted above as well as your detailed discussion of each contention repeated in your NJP appeal, complaint of wrongs, and complaint to the IG. The Board specifically noted you did not contend the chain of command harassed you prior to the NJP nor does the record reflect any indication the adjudication of your fraternization with the ensign was an attempt to harass you or a result of bias toward you. The Board, in its comprehensive review of the available record, further determined there were no legal or factual errors that materially prejudiced any of your substantive rights. The Board thus concluded there was insufficient evidence of an error or injustice which warranted granting your requested relief. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or 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. 10/8/2021 Sincerely, Executive Director