D E P A R T M E N T  O F  T H E  N A V Y  
BOARD FOR CORRECTION OF NAVAL RECORDS 

2 N A W  ANNEX 

WASHINGTON DC  20370-5100 

BJG 
Docket No:  14 15-99 
19 August  1999 

Dear  Petty offig 

This is in  reference to your application  for correction of  your  naval record pursuant to the 
provisions of  title 10 of  the United  States Code, section  1552. 

A  three-member panel of  the Board  for Correction of  Naval  Records, sitting in  executive 
session, considered your application on  18 August  1999.  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, your 
naval  record  and applicable statutes, regulations and  policies.  In  addition, the Board 
considered the advisory opinion furnished by  the Deputy  Assistant Judge Advocate General 
(Criminal Law), dated  1 June  1999, a copy of  which  is attached.  They also considered the 
results of your polygraph examination of 4 August  1999. 

After careful and  conscientious consideration of  the entire record, the Board  found that the 
evidence submitted was insufficient to establish the existence of probable material error or 
injustice.  In  this connecrlorl, the Board substantially wncurrcsd  with  the wimlcrits contained 
in  the advisory opinion.  Since the Board  found no basis to  remove your contested nonjudicial 
punishment, or to  set aside your  reduction  from petty  officer second class to petty officer 
third class, they  had  no  grounds to grant you  "special" consideration for advancement to petty 
officer first class.  In  view  of  the above, your  application has been  denied.  The names and 
votes of  the members of  the panel will be furnished upon  request. 

It is regretted that  the circumstances of  your case are such that favorable action cannot be 
taken.  You  are entitled  to  have the Board  reconsider its decision upon  submission of  new  and 
material evidence or other  matter not  previously 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, 

W.  DEAN PFEIFFER 
Executive Director 

Enclosures 

DEPARTMENT OF THE NAVY 

N A V Y - M A R I N E   C O R P S  A P P E L L A T E   REVIEW ACTIVITY 

VUASHINGTON  NAVY Y A R D  

716 S l C A R D  S T R E E T  S E  S U I T E  1000 

W A S H I N G T O N   DC  20374-5047 

I N  R E P L Y  R E F E R  T O  

1 Jun 99 

From:  Deputy Assistant Judge Advocate General (Criminal Law) 
To: 

Chairman, Board for Correction of Naval Records 

Sihi : 

D RECOMMENDATIONS 

Ref: 

(a) BCNR ltr BJG Docket No.  1415-99 of 27 Apr 99 

1.  Per the reference the following comments and recommendation are provided concerning the 
request 
March  1997, from his service record. 

remove the record of nonjudicial punishment (NIP) imposed 3 

2.  BACKGROUND.  On 3 March 1997  the Commanding Officer, USS LAKE ERIE (CG-70) 
imposed NJP on the th 
based on disrespect to a superior petty officer, assault on a superior petty officer and dereliction 
of duty.  The Commanding Officer did not impose punishment for an alleged four-day 
unauthorized  absence or an allegation of disobeying lawful orders from two superior chief petty 
officers in connection with the unauthorized absence. 

reducing him in rate one pay grade.  The NJP was 

3.  Prior to the imposition of NJP, the allegations were the subject of a JAG Manual 
investigation.  The investigation was completed on 27 February  1997.  The allegations were then 
forwarded to the command's Disciplinary Review Board and the ship's Executive Officer before 
ultimately  being sent to the Commanding Officer for disposition. 

pealed his NJP to Commander, Naval Surface Group MIDPAC who, on 6 

4.  PN 
April  1997, upheld the punishment for dereliction and disrespect but dismissed the assault 
allegation.  The punishment of reduction in rate one pay grade was determined to be 
proportionate to the remaining offenses. 

5.  O n 3 J  
his Commanding Officer raising substantially the same issues as discussed in his current petition. 
On  12 S e p t e ~ b e r  1997, the Deputy Assistant Judge Advocate General (Administrative Law) 
found that no relief was warranted, noting that collateral attacks on NJP are not cognizable under 
Article  138. 

led an Article  138, UCMJ, Complaint of Wrongs against 

which NJP was imposed.  He also alleged 

held accountable for his allegedly hostile conduct during that intervie 

. 

Commanding Officer directed a JAG Manual investigation which was completed 28 August 
1998.  On 9 September 1998, the complaints were determined to be without merit. 

7.  DISCIJSSION.  The following comments are provided in regar 
petition for relief, dated 25 February  1999: 

a.  The petition admits disrespectful language, specifically, swearing 
abandoned his rank when he "attacked, provoked, 

current 

but 
d" 

the statements 

to results of a polygraph 
a-for 
support.  PN3 
se any new issues concerning this 
anding Officer did not have sufficient evidence to impose 

n 6 March 1997, three days after 
olygraph exam.  The results of that 

polygraph were not available at NJP, however they have been submi 
support of his various petitions for relief.  The polygrapher opines t 
trcthful to the four relevant questions related to the alleged assault o  -.. 
6April 1997, the specification alleging assault was dismi 
issue.  The statements of 
not shed new light on th 
were the only two persons other than the petitioner in th 
and disrespect.  Both made written statements during the initial investigation which were 

ing Officer prior to imposing NJP.  The written statements now 
offer no new information, and tend to corroborate the statements of 

,. 

at a short, loud, verbal exchange, betwee- 
interview on 20 February  1997.  Abandonment of rank occurs 

' 

when a-siperior's conduct is so outrageous or demeaning as to be undeserving of the respect that 
the UCMJ protects.  In this case the Commanding Officer, USS LAKE ERIE was in possession 
of all relevant facts at the time of the.NJP. The petitioner had the opportunity to raise the 
defense of abandonment of rank at NJP .and on ap 
to support the Commanding Officer's  conclusion 
as to result in abandonment of his rank and position of authority.  There is also sufficient 
evidence in the record to support his decision to impose NJP for disrespect. 

cient evidence in the record 
nduct was not so outrageous 

b. 

admits in his petition he was derelict in his duty by negligently 
failing to process thirty-two separation travel claims, failing to submit a detaching endorsement 
to the- isb burs in^ Office resulting in a significant overpayment to a separated service member, 
and failing to forward DD Form 214s.  He does not admit that he was derelict for failing to 
maintain  "custody and control" of the command's Certificates of Discharge (Form DD-214).  He 
cites as evidence the report of a Pay and Personal Assistance Team (PPAT) which inspected USS 
LAKE ERIE from 3-7 March 1997.  The report notes that BUPERSINST 1900.8 requires 
custody and control of DD-214 forms to be performed by an E-7 or above.  However, this 
information was contained in the initial JAG Manual investigation submitted to Commanding 
Officer, USS LAKE ERIE.  Also, this issue was raised by the petitioner  at the 3 March 1997, 
mmanding Officer concurred with the petitioner and did not impose 
NJP pro 
iling to maintain custody and control of the DD-214 certificates.  The 
NJP for 

issue is, therefore, moot.  In fact, the Commanding Officer directed the NJP specification be 
changed to omit the excepted language.  However. whe-nended 
NAVPERS  162617 form in the petitioner's service record, the petitioner filed a U.S. Navy 
Regulations,  1 150 complaint.  The complaint was found to be without merit on 9 September 
1998. 

the 

ase was carefully considered by Commanding Officer, USS LAKE ERIE, 

8 
as evidenced by the fact that he found the evidence insufficient to impose NJP for a four-day 
unauthorized absence or disobeying orders from two superior chief petty officers.  The 
Commanding Officer also excepted language concerning the "control and custody" of DD-214 
certificates from the dereliction specification.  On appeal Commander, Naval Surface Group 
MIDPAC also considered the evidence and gave relief in the form of dismissing the specification 
alleging assault on a superior petty officer. 

9.  RECOMhlENDATION.  Based on the above, I am of the opinion that the nonjudicial 
punishment imposed on the petitioner on 3 March 1997 is legally correct as modified on appeal.