From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) Title 10 U.S.C. § 1552 (b) BUPERSINST 1610.10D (c) JAGMAN § 0153 Encl: (1) DD Form 149 w/attachments (2) OIC, ltr 5800 00 of 27 Feb 15 (3) OIC, ltr of 4 Aug 15 (4) Evaluation and Counseling Record for the reporting period 16 Sep 14 to 15 Sep 15 (5) LT ltr 5815 of 29 Apr16 (6) Cmdr, ltr 5800 Ser 004/076 of 16 Aug 16 (7) Detailed Defense Counsel ltr of 14 Jun16 (8) JA Review of 16 Sep 16 (9) Evaluation and Counseling Record for the reporting period 16 Sep 15 to 5 May 16 (10) NAVPERS 1910/31 of 11 May 16 (11) ASB Findings/Recommendation Sheet (undated) (12) NAVPERS 1221/6 of 20 May 16 (13) Petitioner’s ltr of 20 Feb 17 (14) CO SEAL ltr 5000 Ser N00/143 7 Mar 17 (15) Petitioner’s ltr of 17 Mar 17 (16) CO SEAL ltr 5000 Ser N00/143 18 Apr 17 (17) Office of Legal Counsel (PERS-00J) ltr of 13 Mar 20 (18) Petitioner’s rebuttal of 10 Jul 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 his naval record be corrected as follows: a. Return of his Navy Enlisted Classification (NEC), effective 20 May 2016. b. Return of his special duty pay (Dive and Special Duty Assignment), effective 11 May 2016. c. Constructive active duty credit from the day of his discharge to the date of the Board’s decision. d. Retroactive active duty pay, allowances and special pay from the date of his loss of these pays to the date of the Board’s decision. e. Removal of the Evaluation and Counseling Record (“Eval”) for the reporting period 16 September 2014 to 15 September 2015. f. Removal of the Eval for the reporting period 16 September 2015 to 6 May 2016. g. Reversal of the court-martial finding and sentence. h. Removal of his Punitive Letter of Reprimand (PLOR). 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 18 February 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 27 February 2015, Petitioner received enclosure (2), a Letter of Instruction (LOI), directing him not to engage in clinical medical evaluation or treatment or otherwise participate in sick call. The Senior Medical Officer, , drafted a memorandum detailing the suspension of Petitioner’s medical duties and responsibilities. A 20 May 2015 investigation determined Petitioner was prescribing narcotics without authority in violation of the 27 February 2015 LOI. c. On 24 July 2015, a Disciplinary Review Board recommended Petitioner receive nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey a lawful order) and Article 112a (wrongful use and possession of a controlled substance, with the intent to distribute said substance). The DRB also recommended conducting a rating and NEC board based on the charges of violating the UCMJ as well as loss of confidence in Petitioner’s abilities to perform his assigned duties. On 4 August 2015, Petitioner received a second LOI summarizing the DRB and directing him to muster with the master-at-arms. Enclosure (3). d. Petitioner was issued enclosure (4), a Periodic/Regular Eval for the reporting period 16 September 2014 to 15 September 2015, due to his removal as the Medical Department Leading Chief Petty Officer and a loss of trust and confidence in his ability to lead and perform duties assigned. e. On 29 April 2016, Petitioner was found guilty by Special Court-Martial (SPCM) of violation of Article 134 of the UCMJ for obstruction of justice, and was awarded a PLOR. Enclosures (5) and (6). On 14 June 2016 Petitioner filed a clemency request. On 6 September 2016, a Judge Advocate provided a legal review of the record of trial. Enclosures (7) and (8). f. Petitioner was issued enclosure (9), a Detachment of Individual/Regular Eval for the reporting period 16 September 2015 to 5 May 2016. Block 41 (Comments on Performance) included the following: “On 29 April 2016, a SPCM found [Petitioner] guilty of violating U.C.M.J. Article 134 for obstructing justice during a medical malpractice investigation. Judicial action was deemed concluded on 16 August 2016 by the convening authority’s action.” g. On 11 May 16, Petitioner was notified of administrative separation processing for Misconduct (Commission of a Serious Offense). Petitioner elected to have an administrative board (ADB). On 28 December 2016, an ADB voted 3 to 0 to retain Petitioner. Enclosures (10) and (11). h. On 20 May 2016, Petitioner’s Commanding Officer (CO) removed his Medical Deep Sea Diving Technician qualification due to loss of confidence. Enclosure (12). i. On 20 February 2017, Petitioner submitted a Request for Redress. On 7 March 2017, the CO, responded to the Request for Redress and noted that he was not the appropriate authority for four of Petitioner’s requests, and he denied Petitioner’s request for a full investigation into reprisal. Enclosures (13) and (14). j. On 17 March 2017, Petitioner submitted a Complaint of Wrongs pursuant to Article 138 of the UCMJ. On 18 April 2017, the CO, responded to the Article 138 Complaint, noting that Petitioner was an improper complainant because Petitioner received an Honorable Discharge on 22 February 2017, and he was no longer a member of the armed forces on active duty. The chain of command concurred, and on 5 March 2018, the Director, Investigations Division of the Department of Defense Inspector General declined to investigate Petitioner’s reprisal claims. Enclosures (15) and (16). k. Petitioner, with counsel, contends that the alleged misconduct of obstruction of justice was not supported by the evidence, factually or legally; an unsubstantiated allegation is insufficient to deny his reenlistment; he was denied reenlistment despite the ADB’ s recommendation for retention; he received negative Evals contrary to instruction; he was denied his special pays; and he was unjustly forced from the Navy less than three years prior to his retirement eligibility. Petitioner asserts that he would still be serving in the Navy today had these gross injustices not occurred. Petitioner specifically contends that his court-martial conviction is not legally or factually sufficient as the court­ martial members changed the nature of the offense; that a proper legal review of the court-martial under RCM 1112 and Article 64 was not conducted; that his Eval improperly contains the court-martial findings; and the removal of his NEC and loss of special pays, and the unfavorable reenlistment recommendation are improper. l. Enclosure (17), the advisory opinion (AO), furnished by the Office of Legal Counsel (PERS-00J) recommended partial relief. The AO commented that Petitioner’s court-martial was both legally and factually sufficient, that the legal review of the court-martial was proper, and that removal of his NEC and special pay was proper. The AO, however, recommended that Petitioner’s Eval for the reporting period 16 September 2014 to 15 September 2015 be modified to exclude any mention of Petitioner’s LOI. The AO also recommended that Petitioner’s Eval for the reporting period 16 September 2015 to 6 May 2016 be modified to exclude court-martial information as the Convening Authority’s action occurred after 5 May 2016. m. In response to the AO, Petitioner maintains that the Special court-martial findings of guilty were not legally and factually supported by the evidence; the SPCM was reviewed for legal sufficiency by a judge advocate who was conflicted by both an actual and implied conflict of interest; the legal review of Petitioner’s SPCM was legally and procedurally deficient; and Petitioner’s NEC and special pays were improperly removed and denied. Enclosure (18). CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial corrective action. The Board substantially concurred with the AO that the contested Eval at enclosure (9) is not in compliance with reference (b) because it contains court-martial information that occurred after the end of the reporting period. The Board thus concluded that the court-martial information shall be redacted from the Eval at enclosure (9). The Board, however, did not find any errors with the Eval at enclosure (3). The Board noted that there was no mention of Petitioner’s LOIs in the Eval, and that any mention of the underlying facts is permitted. The Board substantially concurred with the AO that Petitioner’s court-martial was both legally and factually sufficient, and that the legal review of the court-martial was proper. Specifically, Petitioner did not furnish evidence showing a material error or injustice regarding the jury members’ finding of “guilty” and disagreeing with the members’ determination does not make it improper. Likewise, Petitioner did not provide evidence supporting his contention of improper legal review or evidence disqualifying the Judge Advocate pursuant to reference (c). Next, the Board substantially concurred with the AO that the removal of Petitioner’s NEC and special pay was proper based on his CO’s loss of confidence in Petitioner’s maturity and responsibility level required to hold the NEC. Lastly, the Board determined that the ADB’ s recommendation merely allowed Petitioner’s retention until his End of Active Obligated Service, and it did not equate to a recommendation for reenlistment. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by redacting enclosure (9), his Evaluation and Counseling Record for the reporting period 16 September 2015 to 5 May 2016 by redacting the following from Block 41 (Comments on Performance): “On 29 April 2016, a Special Court-Martial found [Petitioner] guilty of violating U.C.M.J. Article 134 for obstructing justice during a medical malpractice investigation. Judicial action was deemed concluded on 16 August 2016 by the convening authority’s action.” 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.