DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2952-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. §1552 (b) USECDEF Memo of 25 Jul 2018 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 with attachments 1. Pursuant to reference (a), Petitioner, a former chief petty officer of the Navy, filed the enclosure requesting the Board for Correction of Naval Records (Board) to set aside his administrative separation, remove corresponding derogatory material, and either restore Petitioner to active duty with back pay or retire him. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 7 May 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 his naval service records, and applicable statutes, regulations, 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 regulations within the Department of the Navy. b. Regarding Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered his case based on the evidence of record. c. The Petitioner initially enlisted in the Navy and began a period of active service on 23 June 1998. The Petitioner’s most recent reenlistment contract commenced on 17 March 2014. d. During his previous enlistment, on 25 June 2013 Petitioner went to non-judicial punishment (NJP) for larceny and failing to obey a lawful order for using a command Fleet Card to purchase fuel for his personal vehicle. As punishment, the Petitioner received a punitive letter of reprimand and suspended forfeitures of pay. In the command’s Report of Misconduct to Commander, Navy Personnel Command (CNPC) of 27 August 2013, Petitioner’s Commanding Officer (CO) indicated that he did not intend to process the Petitioner for administrative separation and recommended Petitioner be allowed to remain on active duty. The CO also noted that Petitioner repaid the U.S. Government for the misuse of the Fleet Card. e. In April and May of 2016, Petitioner’s command, Navy Cargo Handling ( ), conducted a command investigation (CI) to identify the facts and circumstances surrounding the events leading to the damage of a 40-foot spreader bar owned by the United States Antarctic Program and utilized by Petitioner’s command during Operation Deep Freeze 2016. The investigating officer opined that Petitioner was derelict in his duties because he authorized the improper modification of the spreader bar during its use, but that Petitioner did not maliciously intend on causing damage to any gear. Petitioner did not face any disciplinary or adverse administrative action resulting from the CI. f. On 9 August 2016, Petitioner went to NJP for failing to obey a lawful general order/regulation and adultery. The Petitioner engaged in an unduly familiar relationship with an enlisted subordinate from his same command in violation of the policy prohibiting fraternization. He was found guilty of both charges. As punishment, the Petitioner received a punitive letter of reprimand and forfeitures of pay for two months. The Petitioner did not appeal his punishment. g. On 22 August 2016, Petitioner’s command routed the “Report of NJP” to NPC, and also requested his formal detachment for cause (DFC) from . Notwithstanding the DFC request, Petitioner’s CO strongly recommended that Petitioner be transferred to another command and be retained on active duty in order to complete his 20 years of service. However, ’s immediate superior in the chain of command (ISIC), ( ), disagreed with the CO’s retention recommendation and recommended Petitioner’s administrative separation (Adsep) to NPC. h. On 1 December 2016, NPC approved Petitioner’s formal DFC from . On 22 December 2016, detached Petitioner and effected his transfer to . i. On 17 January 2017, notified Petitioner of Adsep proceedings by reason of misconduct for the commission of a serious offense. On 18 January 2017, Petitioner elected all afforded rights including an Adsep board. j. On 19 and 20 July 2017, an Adsep board convened at Naval Weapons Station Yorktown, Virginia. The Petitioner was represented by counsel. Following the presentation of evidence and witness testimony, the Adsep board members unanimously determined that the preponderance of the evidence supported both serious offense bases for separation related to the Petitioner’s August 2016 NJP fraternization and adultery offenses. The Adsep board members recommended by unanimous votes that Petitioner: (a) be separated from the naval service, and (b) receive a General (Under Honorable Conditions) (GEN) characterization of service. k. On 28 August 2017, recommended to NPC that Petitioner be administratively separated with a GEN discharge. In his Adsep endorsement, the Commander also concluded there were no procedural defects with the Adsep board contrary to arguments by Petitioner’s counsel in her post-Adsep letter of deficiencies. Ultimately, on 31 January 2018, Petitioner was administratively separated from the Navy with a GEN discharge. On his separation date, Petitioner had completed 19 years, 7 months, and 9 days of active duty service. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief, given the totality of the circumstances. Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose and intent of the Under Secretary of Defense Memorandum (reference (b)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on thebasis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board concluded that the Petitioner’s claim has merit and that corrective action should be taken as outlined below. The Board determined that the de facto punishment the Petitioner received in the form of an Adsep on the eve of his retirement eligibility date was unjust and wholly disproportionate to the offenses he committed. The Board observed that Petitioner did engage in an unduly familiar relationship that violated long standing customs and traditions of the U.S. Navy and that was prejudicial to good order and discipline. The misconduct as charged involved consensual sexual contact on two occasions with a subordinate at . The Petitioner went to NJP and was found guilty and punished. Following the NJP, Petitioner was effectively “fired” from his job at and formally detached for cause. Despite the NJP and DFC, the CO stated that Petitioner “has served his country with honor and commitment,” and strongly recommended that Petitioner be retained on active duty to complete his twenty years of service. However, the ISIC concluded otherwise and initiated Adsep proceedings. The Board determined that the NJP and DFC were appropriate and proportional to the offenses committed, and were consistent with measures taken with similarly situated service members. The Board believed that such comprehensive administrative measures sent the necessary message about prohibited behavior at and provided the appropriate deterrent effect at the command. However, the Board did not concur with the ISIC’s subsequent Adsep processing of Petitioner. While not expressly condoning Petitioner’s misconduct, the Board concluded that given the nature of the misconduct involved, that the Petitioner’s subsequent Adsep offends one’s sense of equity and justice for even the most prosecutorial minded individuals. Ultimately, the Board viewed this case through the lens of an analogous court-martial sentence appropriateness analysis as applied to Petitioner’s unique factual circumstances, and determined that Petitioner’s Adsep on the eve of his retirement was unduly harsh. With that being determined, and as purely a matter of clemency, the Board concluded that no useful purpose was served by discharging the Petitioner just prior to his retirement eligibility date, and that he instead be allowed to retire in his rank of chief petty officer (E-7) with 20 years, 0 months, and 0 days of qualifying active duty service. The Board declined to allow Petitioner to be reinstated on active duty and allowed to continue active duty service. Notwithstanding the corrective action recommended below, the Board found that Petitioner’s August 2016 NJP and subsequent DFC were both legally and factually sufficient and declined to set either of them aside, or redact or remove any related documentation in Petitioner’s record. Despite voting to set aside Petitioner’s Adsep on clemencygrounds, the Board concluded that the Adsep processing and board were still in substantial compliance with applicable law and all Department of the Navy directives and policy at the time of his discharge. Moreover, despite Petitioner’s contentions, the Board found no substantive, evidentiary or procedural defects with Petitioner’s Adsep board. The Board also determined that there was no evidence in the record of any command misconduct, improper motives, or abuses of discretion in the investigating, handling and processing of Petitioner’s NJP, DFC, and Adsep. The Board was not willing to upgrade the Petitioner’s discharge characterization to honorable. The Board did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge, and that significant negative aspects of the Petitioner’s conduct outweighed positive aspects of his service record. The Board believed that in this case a GEN discharge is appropriate and that his reentry code should remain “RE-4.” RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That the Petitioner’s naval record be corrected, where appropriate, to show that: The Adsep board of 19-20 July 2017 is set aside, and all Adsep-related and corresponding derogatory documents and material to include, but not limited to: Adsep Processing Notice, Adsep Record of Proceedings and Findings Worksheet, Adsep Letter of Deficiency, the Recommendation for Adsep, and any applicable separation orders, beremoved from Petitioner’s naval record. That Petitioner’s Evaluation & Counseling Record (Eval) for the period of report (17SEP08 to 18JAN31), be removed from Petitioner’s naval record. That Petitioner's naval record be corrected by inserting a memorandum containing appropriate identifying data in place of the removed Eval; that the memorandum state that the Eval has been removed by order of the Secretary of the Navy in accordance with the provisions of federal law and may not be made available to selection boards and other reviewing authorities; and that such boards may not conjecture or draw any inferences as to the nature of the removed Eval. That Petitioner’s discharge from the U.S. Navy effective 31 January 2018 is null and void, and to remove Petitioner’s corresponding DD Form 214 from his naval record. That Petitioner submitted a request to be transferred to the Retired List, effective 1 July 20181, and such request was approved by cognizant authority. That Petitioner be granted service credit from 1 February 2018 to 30 June 2018, and entitlement to full retirement pay and benefits commencing on 30 June 2018, at the grade/rank of chief petty officer (E-7). That there be inserted in Petitioner’s naval record a memorandum in place of the service credit, containing appropriate identifying data that such memorandum was directed by order of the Secretary of the Navy in accordance with the provisions of federal law, and that such boards may not conjecture or draw any inferences as to the nature of the memorandum. Note: Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay and allowances. That Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, listing a separation date in block 12b of 30 June 2018. Additionally, block 12c shall be corrected to reflect net service. That Petitioner’s type of separation be changed to “Retired,” the separation authority be changed to “MILPERSMAN par. 1810-010,”the separation code be changed to “RBD,” the narrative reason for separation should be changed to “Sufficient Service for Retirement,” but the 1,2,3,4 (or on such date(s) as determined by NPC where Petitioner will have completed 20 years of active duty service). reentry/reenlistment code remains “RE-4,” and the character of service remains “Under Honorable Conditions (General).” That a copy of this report of proceedings be filed in Petitioner’s naval record. That no further relief be granted. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 11 March 2019. 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.