Docket No: 9274-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C.§1552 (b) JAGINST 5800.7F (JAGMAN) (c) MILPERSMAN Encl:(1) DD Form 149 w/attachments (2) Report of Disposition of Offense of 10 Mar 16 (3) Punitive Letter of Reprimand of 4 Jun 16 (4) NJP Report of 25 Sep 16 (5) Detachment for Cause of 18 Oct 17 (6) Fitness report for the reporting period 1 Feb 16 to 31 Jan 17 (7) Fitness report for the reporting period 18 Feb 17 to 31 Jan 18 (8) Board of Inquiry Report of 6 Feb 18 (9) NPC memo 1610 PERS-32 of 19 Dec 18 (10) Cmdr, NPC (PERS-00J) ltr of 12 Aug 19 1. Pursuant to the provisions of reference (a), Petitioner, a commissioned officer of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing from his official military personnel file (OMPF) his (1) non­judicial punishment (NJP) and all associated documents, (2) Punitive Letter of Reprimand (PLR), (3) Detachment For Cause (DFC) letter, and (4) fitness reports for the reporting periods 1 February 2016 to 31 January 2017 and 18 February 2017 to 31 January 2018. 2. The Board reviewed Petitioner’s allegations of error and injustice on 21 January 2020 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 that, before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board also made the following findings: a. On 10 March 2016, Petitioner received NJP for fraternization in violation of Article 92, Uniform Code of Military Justice (UCMJ), for wrongfully engaging in a prohibited relationship with a subordinate petty officer. The punishment imposed was enclosure (3), the PLOR. b. Petitioner appealed his NJP and PLOR to the Commander, that he committed the offense. On 23 May 2016, his appeals were denied. c. Commander, , denied Petitioner’s second NJP appeal. d. On 18 October 2017, enclosure (5), the Deputy Commander, Navy Personnel Command, approved a request to detach Petitioner for cause. e. Petitioner received a fitness report for the reporting period 1 February 2016 to 31 January 2017. In the report, Petitioner was marked 2.0 in the traits “Command or Organizational Climate/Equal Opportunity” and “Military Bearing.” In block 41, the Petitioner’s reporting senior (RS) noted, “Report was submitted for continuity purposes and to document member’s Non-Judicial Punishment held on 10 March 2016” and “this report documents completion of NJP for violation of UCMJ Article 92.” f. Petitioner received another fitness report for the reporting period 18 February 2017 to 31 January 2018. The report was marked 2.0 in the traits “Command or Organizational Climate/Equal Opportunity” and “Military Bearing.” In block 41, the Petitioner’s RS noted that the Deputy Chief of Naval Personnel, BUPERS-00B, had approved Petitioner’s DFC for misconduct. g. On 6 February 2018, a board of inquiry (BOI) was convened. The BOI unanimously found that the preponderance of the evidence did not support the allegations of fraternization or substandard performance. h. On 26 March 2018, Petitioner submitted a request to his current commanding officer (CO) to set aside his NJP. On 6 September 2018, the CO denied Petitioner’s request. i. On 18 May 2018, at his request, Petitioner submitted to a polygraph examination. Petitioner responded “No” to three questions regarding physical sexual contact, non-physical sexual interaction, or sexual contact with the petty officer. The examination resulted in a finding of “No Deception Indicated.” The Examiner opined that Petitioner answered each question truthfully. j. The advisory opinion (AO) at enclosure (9) recommended that Petitioner’s record remain unchanged. The AO opined that the contested fitness reports are valid, explaining that Petitioner acknowledged the fitness report for the reporting period 1 February 2016 to 31 January 2017 and indicated that he did not intend to submit a statement. The AO noted that regulations permit RSs to comment on misconduct that has been clearly established to their satisfaction, and that Petitioner was found guilty at NJP for violation of Article 92, UCMJ, which resulted in the first adverse fitness report. The AO also noted that Petitioner’s CO’s comments on the adverse matter within the report were authorized, Petitioner received a PLOR, and he was recommended for DFC, which was approved. Petitioner received the second adverse report that was justified by the DFC. k. The AO at enclosure (10) also recommended that Petitioner’s request be denied. The AO opined that Petitioner was afforded due process and his case was handled in accordance with Navy instructions. The AO noted that Petitioner’s CO relied upon text messages between Petitioner and the subordinate Sailor, as well as an NCIS investigation. The AO explained that the fact that a BOI reached a different conclusion than Petitioner’s CO does not render the NJP inappropriate or a clear injustice, because NJP and administrative separation processing are separate administrative processes. The AO concluded explained that the administrative actions in Petitioner’s case were consistent with Navy policy and supported by evidence. l. The Board considered Petitioner’s contentions that (1) his NJP, PLOR, and DFC were unjust because he did not commit misconduct, as shown by the BOI’s findings and his polygraph examination, (2) his PLOR was unjust because it did not follow the applicable instruction, (3) his DFC was unjust because it occurred before his BOI, (4) the 1 February 2016 to 31 January 2017 fitness report was unjust because it was based on the unjust DFC and did not include his statement when it was placed in his OMPF, and (5) his rebuttal statement for the 18 February 2017 to 31 January 2018 fitness report was not included in his OMPF. MAJORITY CONCLUSION Upon review and consideration of all the evidence of record, the majority found the existence of an error warranting corrective action. The majority noted the text messages “Hope you’re not too hung over today ;-)” and “Wish we were still in the same duty section” but did not find them sufficient to determine that an unduly familiar relationship existed. The Board members also considered the BOI’s finding that the preponderance of the evidence did not support the allegations of fraternization. The Board members noted the findings of Petitioner’s polygraph examination that he responded truthfully regarding any sexual or non-sexual relationship with the petty officer. Contrary to the AOs, then, the majority determined that Petitioner’s NJP was not supported by sufficient evidence to conclude that he did not fraternize in violation of Article 92, UCMJ, and that, therefore, his NJP was unjust and should be removed. The majority further determined that the PLOR, DFC, and fitness reports that resulted from the NJP should be removed. MAJORITY RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by removing his 10 March 2016 NJP. Petitioner’s naval record be corrected by removing his 4 June 2016 PLOR. Petitioner’s naval record be corrected by removing the 25 September 2016 NJP Report. Petitioner’s naval record be corrected by removing the 18 October 2017 DFC. Petitioner’s naval record be corrected by removing his fitness report for the reporting period 1 February 2016 to 31 January 2017. Petitioner’s naval record be corrected by removing his fitness report for the reporting period 18 February 2017 to 31 January 2018. Any material or entries inconsistent with or relating to theBoard’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems/database entries that reference or discuss the material being expunged. MINORITY CONCLUSION Upon review and consideration of all the evidence of record, acknowledging Petitioner’s contentions, the minority did not find the existence of a probable error or injustice warranting corrective action. The minority noted that Petitioner received NJP for violating Article 92, UCMJ, for fraternization. The minority also noted that, on 18 October 2017, the DCNP approved Petitioner’s CO’s request to detach him for cause, and that Petitioner was issued the contested fitness reports documenting his NJP and DFC. The minority substantially concurred with the AO that Petitioner’s record remain unchanged. The minority noted that Petitioner exercised his right to appeal his NJP. His appeals were reviewed and denied by the general court-martial convening authority, who determined that the evidence supported the CO’s decision, and that the finding of guilt was not an abuse of discretion. The minority further concurred that Petitioner was afforded due process and his case was handled in accordance with Navy instructions. The minority also noted that Petitioner’s CO relied upon text messages between Petitioner and his subordinate, as well as an NCIS investigation. And the minority agreed that NJP and administrative separation processing are separate administrative processes, and that, therefore, the fact that a BOI reached a different conclusion than Petitioner’s CO does not render the NJP inappropriate or a clear injustice. The minority thus concluded that there is no probable material error or injustice warranting corrective action. MINORITY RECOMMENDATION No change to Petitioner’s 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-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.