Docket No: 1566-21            
          
 
Dear Petitioner:  
 
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 for Correction of Naval Records, sitting in executive session, considered your application on 20 August 2021.  The names and votes of the panel members 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). 
 
You enlisted in the Navy and served honorably on activity duty from 3 August 2000 until 28 August 2008, when you were discharged upon completion of required active service.  You began another period of active duty service on 8 December 2008.  On 1 July 2012, you were discharged due to reduction in force with an honorable characterization of service and received an RE-R1.  You transferred to the Navy Reserve in 2012, and continued your service in the Reserves as a Legalman First Class (LN1/E6).  You began a period of active duty service on 8 February 2019 in support of Expeditionary Combat Readiness Center (ECRC) DET   You assert that on 28 April 2019, you met three fellow LN1s who were participating in their drill weekend for lunch at a restaurant in   At the end of the lunch, you and the LN1s gave one another hugs.  On 26 November 2019, , a female Sailor, filed a formal EO and Sexual Harassment Report alleging that following the lunch on 28 April 2019, you growled at her and bit her on the face when you hugged one another.  She further alleged that she pushed you away, asked what you were doing and that you pulled her back and responded, “no, no sis, come here.”  ECRC initiated a Command Investigation into the facts and circumstances, and recommended in part that you be processed for administration separation.  You were notified on 5 February 2020 that administrative separation proceedings were being initiated against you.  You elected to appear before an Administrative Separation Board.  On 8 to 10 April 2020, you appeared via video teleconference (VTC) before an Administrative Separation Board.  The Administrative Separation Board found that you committed misconduct due to sexual harassment, but that you did not commit misconduct due to insubordinate conduct or misconduct due to assault consummated by battery.  By a vote of 2 to 1, the members recommended that you be separated; by a vote of 3 to 0, the members recommended you receive a general characterization of service.  You submitted a Letter of Deficiency (LOD) through counsel on 23 April 2020.  On 24 April 2020, Commanding Officer, Navy Operational Support Center (NOSC) , forwarded his recommendation for administrative separation in concurrence with the Administrative Separation Board’s findings to Commander, Navy Region Mid-Atlantic Reserve Component Command.  Commander, Navy Region Mid-Atlantic  reviewed and forwarded the recommendations along with an acknowledgement and response to the procedural and substantive issues you raised in your LOD, to Commander Navy Personnel Command (CNPC).  On 1 May 2020, Commanding Officer, NOSC Long Island, was notified by CNPC that you were to be discharged with a general characterization of service.  On 4 May 2020, you were discharged from the U.S. Navy Reserve on the basis of misconduct and received a general characterization of service.    
 
In your application to the Board, you state that you were 79 days away from having 20 years of qualifying service for purposes of a Reserve retirement and that you had completed all requirements for your final year to be deemed as qualifying.  You ask that the Board correct your record to reflect entitlement to a Reserve retirement.  You specifically request that the Board find that you were separated from the Naval Reserves and qualified for retirement from the Navy Reserves rather than having been discharged for misconduct, that your characterization of service be upgraded to honorable, and that you receive restoration of all pay, allowances, entitlements, rights, and privileges affected by the involuntary separation and denial of eligibility to qualify for a 20-year retirement.  The legal brief submitted outlines numerous allegations of error and injustice and matters for clemency consideration.  You note the length of your service to include your active duty service from 2000 to 2012, your completion of all requirements during your final year of reserve service to deem the year as qualifying for purposes of retirement, and state that you are currently enrolled at .  You also make allegations of error and injustice to include that you did not receive a fair and impartial Administrative Separation Board, that the allegations did not reflect who you are as a person and who you were as a petty officer, and that the evidence at the administrative separation board did not support the findings.  You take issue with the VTC proceedings, ex parte communications between the Legal Advisor and members and Recorder and members during the Administrative Separation Board, and the members’ consideration of MILPERSMAN 1910-222 without the regulation being put into evidence. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your contentions of erroneous and unjust administrative separation proceedings and an erroneous and unjust discharge just shy of 20 years of qualifying service for purposes of entitlement to a Reserve retirement.  The Board noted that your 23 April 2020 LOD to Commanding Officer, NOSC , raised the issue of your objection to VTC proceedings, ex-parte communications (one between Board Members and Recorder, and two between Board Members and Legal Advisor), and the Legal Advisory providing a copy of MILPERSMAN 1910-122 to the Board Members during the deliberation proceedings.  Your LOD also contested the basis for the finding of sexual harassment.  You contended that based on the findings that insubordinate conduct under Article 91 and assault consummated by battery under Article 128 did not occur, combined with the lack of evidence of you having made comments of a sexual nature, that the only remaining assertion concerning unwelcome physical contact was the “hug” that transpired between you and LN1   You noted that the testimony during the Administrative Separation Board proceedings established that hugging was commonplace between members of the reserve LN1 community in  and you asserted that the information presented established that LN1  gave you the hug thereby indicating that you did not initiate or make unwelcome physical contact.  You also imply that although LN1  may have perceived to have been bitten on the face, her perception was most likely a “flashback” from a prior traumatic incident 14 years in the past.  You requested that the finding of misconduct be set aside; furthermore you contended that separating you from the Reserves and taking away benefits associated with retirement based on the finding was totally wrong and unwarranted in all respects.   
 
In consideration of the findings of the Administrative Separation Board and after reviewing your LOD, Commanding Officer, NOSC Long Island recommended that you be administratively separated.  In his 24 April 2020 recommendation letter he addressed issues raised in the LOD.  The 24 April 2020 recommendation by the Commanding Officer noted that PERS Legal authorized the use of alternate electronic means to conduct your administrative separation board and that your board was appointed and conducted in accordance with DoD, MILPERSMAN, and PERS 832 guidance.  The Commanding Officer noted the changing COVID 19 environment at the time when articulating the reasoning behind the use of VTC.  He also noted that he had granted your request to delay the board for two weeks to allow for you to self-quarantine to account for an imposed Restriction of Movement.  The Commanding Officer reviewed the transcript and recordings and found that all parties had access to all pertinent information and communication was clear and consistent throughout the proceeding.  Commander, Navy Region   reviewed the Commanding Officer’s recommendation and your administrative separation proceedings to include your LOD.  In the Commander’s endorsement and concurrence with the recommendations of the Administrative Board, he responded to your substantive and procedural objections.  He found that the allegations of ex parte communications and improper submission of the MILPERSMAN were unfounded, and determined that the Administrative Separation Board was not conducted in violation of the regulatory guidance.  Furthermore, the Commander determined that the evidence presented to the Administrative Separation Board supported the finding that the hug between you and LN1  was unwanted and constituted sexual harassment.    
 
The Board noted your application for correction (DD Form 149 with supporting brief and evidence) raises in part issues previously addressed in the LOD.  The Board concurred substantively with the reasoning in the recommendation and endorsement letters of Commanding Officer, NOSC , and Commander, Navy Region , respectively.  The Board specifically determined that the use of VTC was not erroneous nor unjust, the communications that you assert were wrongful ex parte communications which created unfairness and error during the proceedings were not prejudicial nor did they violate the administrative separation process, and the finding of misconduct was supported by the testimony and evidence presented during the Administrative Separation Board.  Furthermore, the Board found that your chain of command was not unjust in recommending that you be discharged from the Navy Reserve despite the length and quality of your service prior to the April 2019 incident.  Accordingly, the Board found that your administrative discharge proceedings and subsequent administrative discharge were neither erroneous nor unjust. 
 
The Board considered the gravity and impact of the loss of your Reserve retirement and noted your sustained and positive contributions to the Navy since 2000.  However, like the members of the Administrative Separation Board; Commanding Officer, ; Commander, ; and CNPC, the Board determined that sexual harassment of a fellow LN1 in the Reserve community supported the outcome reflected in your record.  The Board found that even in consideration of the mitigating factors to include your career of military service, the impact of the loss of a Reserve retirement, and your post-discharge efforts, that your general discharge was issued without error or injustice.  Given the totality of the circumstances, the Board determined that your request does not merit 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.   
 
Sincerely, 
9/2/2021
Executive Director