DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

ELP
Docket No. 8231-98
26 April 1999

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

 

Subj: REVIEW OF NAVAL RECORD OF

 

Ref: (a) 10 U.S.C.1552

Encl: (1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the United States Navy applied to this
Board requesting, in effect, that his naval record be corrected
to show that he was not discharged on 22 December 1997 but
continued to serve until eligible for transfer to the Fleet
Reserve on or about 31 August 1988.

2. The Board, consisting of Messrs. Ms. Taylor, Mr. Carlson,
and Mr. McCullough, reviewed Petitioner's allegations of error
and injustice on 14 April 1999, 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, 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
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. Enclosure (1) was filed in a timely manner.
c. Petitioner reenlisted in the Navy on 8 May 1995 for
three years as an MS1 (E-6). At the time of his reenlistment,
he had completed nearly 17 years of prior active service.
During this period he generally served in an excellent manner.
Although he received two nonjudicial punishments early in his
career, he later received the Navy Achievement Medal. At the
time of the events at issue, Petitioner was assigned to the
Naval Hospital, Jacksonville, FL.

d. Petitioner served without incident until 25 April 1995.
On that date, the Naval Criminal Investigative Service (NCIS)
initiated an investigation into allegations that on 25 April
1995, Petitioner indecently assaulted a female AN (E-3) in the
barracks by putting his hand inside her shorts and on her
breast. Initially, Petitioner denied having any contact with
the AN, however, on a second interrogation, he admitted putting
his hand inside her shorts but denied placing his hand inside
her shirt. Then, prior to the pre-test portion of a polygraph
examination on 28 August 1995, he admitted placing his hand in
her shirt and grabbing her breast.

e. On 27 October 1995, Petitioner was convicted, in
accordance with his pleas, of two specifications of indecent
assault by a military judge sitting as a special court-martial.
The judge sentenced him to confinement at hard labor for 85
days, forfeitures of $100 per month for six months, and
reduction in rank to MS3 (E-4). However, the military judge
also recommended that the convening authority suspend the
reduction in rate below MS2 (E-5). In this regard, it should be
pointed out that the military judge could legally have sentenced

Petitioner to a bad conduct discharge, confinement at hard labor
for six months, and forfeitures of two-thirds of his pay for six
months.

f. On 28 November 1995, the Enlisted Performance Division
in the Bureau of Naval Personnel (Pers-83) advised the
commanding officer (CO) that information contained in the NCIS
report indicated that administrative separation processing was
mandatory and requested the status of any pending disciplinary
action. The CO advised Pers-83 on 6 January 1996 of
Petitioner's conviction by court-martial and also opined that
separation action was not deemed appropriate given Petitioner's
more than 17 years of honorable service and since the court-
martial did not adjudge a punitive discharge.
g. On 29 January 1996 the command judge advocate
recommended that the convening authority approve the sentence as
adjudged, but further recommended consideration of the military
judge's recommendation for clemency. It was also noted that
Petitioner had apologized to the victim, his wife, the court and
the government for his actions. On 5 February 1996, the
convening authority approved the sentence, but suspended the
reduction in rate below MS2 for a period of 12 months from the
date the sentence was adjudged. By the time of the convening
authority's action, Petitioner had completed the adjudged period
of confinement and been restored to duty.

h. On 27 February 1996, Pers-83 directed that Petitioner
be processed for administrative separation by reason of
misconduct due to commission of a serious offense. Pers-83
stated that such action was mandatory and appropriate given
Petitioner's conviction of two counts of indecent assault.
However, more than a year elapsed before such action was
initiated. On 2 April 1997 Petitioner was notified that
administrative separation action had been initiated by reason of
misconduct due to commission of a serious offense. He was
advised that he could receive a discharge under other than
honorable conditions. On 12 May 1997, Petitioner elected to
exercise his right to representation by counsel and presentation
of his case to an administrative discharge board (ADB).

i. Meanwhile, another division within the Bureau of Naval
Personnel approved Petitioner's request for transfer to the
Fleet Reserve, effective 31 August 1998.

j. Petitioner appeared before an ADB with counsel on
29 May 1997. The ADB, consisting of a LCDR (0-4), a LT (0-3),
and a PNC (E-7), found that Petitioner committed misconduct due
to commission of a serious offense. By a vote of 2-1, the ADB
recommended that he be separated with an honorable discharge,
but that the discharge be suspended for a period of 18 months.
The minority member recommended that he be retained in the Navy
until he became eligible for transfer to the Fleet Reserve. The
CO concurred with the ADB's recommendation, stating that
discharge should be suspended for 18 months to allow
Petitioner's transfer to the Fleet Reserve.
k. In a memorandum to the Chief of Naval Personnel (CNP),
Pers-83 recommended that Petitioner be discharged by reason of
commission of a serious offense and that separation not be
suspended. The memorandum noted that Petitioner who was serving
as the manager of a bachelor enlisted quarters (BEQ) when he
sexually assaulted a junior female sailor in her BEQ room.
Pers-83 also pointed out that Petitioner initially denied
touching the victim and did not admit that he touched the
victim's breast until the third interrogation. Pers-83 stated
that while the CO's desire to retain Petitioner until his Fleet
Reserve eligibility date was understandable, his misconduct and
subsequent lies were not conducive to continued retention.
Pers-83 also stated that since Petitioner had over 18 years of
service, CNP was the separation authority.

1. On 16 October 1997, CNP, acting in his capacity as
Deputy Chief of Naval Operations, directed an honorable
discharge by reason of misconduct due to commission of a serious
offense. Thereafter, the CO requested a flag officer review of
Petitioner's case and strongly recommended his retention until
eligible for transfer to the Fleet Reserve. However, CNP
directed execution of the discharge and indicated that the case
had already been reviewed by a flag officer, the Deputy CNP,
with CNP acting as separation authority. Accordingly, no
further flag review was warranted and the prior authorization to
transfer to the Fleet Reserve was cancelled.

m. Petitioner was honorably discharged on 22 December
1997. At the time, he had completed more than 19 years and four
months of active service. Any lost time incurred as a result of
the special court-martial sentence to confinement is not shown
in the record or on Petitioner's DD Form 214.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action on the grounds that Petitioner's misconduct did not
warrant his administrative separation only months before he was
eligible to transfer to the Fleet Reserve.

The Board first notes that by the time of Petitioner's
discharge, his many years of excellent, though not exemplary,
military service had brought him close to the point at which he
could transfer to the Fleet Reserve. The Board is aware that

4
there is no right to be retained to accumulate sufficient
service for retirement. An individual in that situation must
adhere to Navy standards. Nevertheless, the Board is relucant
to approve an administrative discharge for such an individual
since it deprives the him of retirement benefits.

The Board also notes that the military judge who sentenced
Petitioner did not adjudge a punitive discharge, and imposed far
less than the maximum punishment. Additionally, he took the
somewhat unusual step of recommending a partial suspension of
the sentence; a recommendation that the convening authority
approved. Consequently, it appears that the judge hoped, and
maybe even expected, that Petitioner would be permitted to
continue his service. The Board views the actions of the judge
as significant since such an individual is extremely well-versed
in the need for military discipline and would not make such a
recommendation lightly.

The military judge was not the only one who thought Petitioner
was worth saving, every member of the ADB thought so too. It is
most important to note that although there was a split vote on
the ADB's recommendation, in actuality, no member of the ADB
wanted to see Petitioner discharged without an opportunity to
serve out the brief period of time needed to transfer to the
Fleet Reserve. Such a recommendation, coming from an ADB
composed of two experienced officers and a chief petty officer,
is entitled to considerable weight.

Of further significance are the efforts of the CO on
Petitioner's behalf. Petitioner's CO was the commander of a
naval hospital and was obviously an individual well aware of the
need for military discipline and proper behavior. Based on its
experience, the Board finds it very unusual for the CO to
recommend against separation processing given the offenses of
which he was convicted. Additionally, because of the nature of
the offenses, the Board would expect that the CO would have
recommended Petitioner's immediate separation despite the
favorable recommendation of an ADB. The Board also believes
that in very few cases would a CO ask for further review when
separation had been directed by competent authority.
Nevertheless, the CO never wavered in his support for
Petitioner.
Finally it should be kept in mind that even after he was
convicted and completed his confinement, Petitioner apparently
served without incident for more than a year before
administrative separation action was initiated, only months
before his eligibility for retirement. The timing of such
action was extremely unfortunate and constitutes an additional
mitigating factor in the case.

Based on the foregoing, the Board has an abiding belief that
administrative separation in this case is overly harsh, and that
the recommendations of the ADB and the CO for retention should
have been approved. Accordingly, the Board concludes that
Petitioner's record should be corrected to show that he was
retained in the Navy until he became eligible for transfer to
the Fleet Reserve. In this regard, the Board would point out
that even if such action is taken, the reduction in rate imposed
at Petitioner's court-martial will constitute a continuing
punishment since he will draw the retirement pay of an MS2
instead of an MS1, thus costing him many thousands of dollars
over the years.

In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.

RECOMMENDATION :

a. That Petitioner's naval record be corrected to show
that he was not discharged on 22 December 1997 but continued to
serve on active duty without interruption.

b. That the record be further corrected to show that on
7 May 1998, Petitioner extended his enlistment for six months.

c. That the record be further corrected to show that
Petitioner continued to serve on active duty without
interruption until first eligible to transfer to the Fleet
Reserve and on that date, was so transferred. This should
include the issuance of a new DD Form 214. The Board notes that
the date of 31 August 1998 was originally selected for
Petitioner's transfer to the Fleet Reserve, but that date may
need to be changed if there was time lost due to confinement
imposed at the special court-martial.

d. That a copy of this Report of Proceedings be filed in
Petitioner's naval 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.

 

ROBERT D. ZSALMAN
Recorder Acting Recorder

5. The foregoing action of the Board is submitted for your
review and action.

W. DEAN PFE

Reviewed and approved: JUL 2 1999

Rovers, Neo

KAREN S. HEATH

Principal Deputy Assistant Secretary of the Navy
(Manpower and Reserve Affairs)