DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

AEG

Docket No. 4630-98
20 September 1999

Dear Mr .

This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10, 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 15 September 1999.
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.
from Major (MAJ; 0-4) Jeffrey P. Co, USMC, dated 30 April 1999, a
copy of which is attached.

In addition, the Board considered the affidavit

Your allegations of error and

The Board found that you first enlisted in the Navy on 26 March
1979.
You then served in a generally satisfactory to excellent
manner for about nine years, advancing in rate to builder first
class (BU1; E-6) in 1987.
shown by the fact that you received no overall evaluation lower
than 4.0 during the period from 1988 to 1995.
another excellent evaluation in 1996 under the Navy’s new
performance evaluation system.
for four years, in August 1993.
for duty to Navy Security Group Activity (NSGA), Hanza, JA.
outstanding performance in this assignment was recognized by the
award of the Navy Achievement Medal in 1995.

You reenlisted for the last time,
In October of 1993 you reported

Your performance then improved, as

You received

Your

On 6 May 1997 Construction Electrician Second Class (CE2; E-5) 0
submitted a statement to Special Agent P of the Naval Crim-inal
Investigative Service (NCIS) concerning events which occurred on
an overnight camping trip with his wife and several co—workers
and friends.
on the previous day and reads, in part, as follows:

This statement elaborated on a statement he wrote

I would say as the night went on, I probably drank a 12

pack of beer before starting to go to sleep with a good
buzz.

I would guess it was between 2300 and midnight, 18-

1

19Apr97, when people started filing away from the camp fire
and going to their tents to go to sleep. During this time,
I was laying down in a lawn chair next to the camp fire and
started to fall asleep while others were still filing off
to their tents.

I was in

Sometime between midnight and 0600, 19Apr97, I felt a pain
in my genital and anal area while I was sleeping.
a real deep sleep at the time I first noticed this pain. I
opened my eyes and thought I saw (you) laying in a lawn
chair next to me with his hands down my sorts and
masturbating me.
Since I was in such a deep sleep prior to
opening my eyes and still half asleep when I opened them, I
thought I had just imagined or dreamed what I had just
seen.
I then felt another pain in my genital area and
after feeling this strange discomfort .
legs and saw (you) pull his hand out of my shorts and look
around the campfire to see if anyone was looking.
seeing all this going on but I felt like I was still in
that imaginary world between sleep and consciousness.
was confused if I was still sleeping or awake.

I crossed my

I was

.

.

I

This time

I fell back (to) sleep and again started to feel the
strange discomfort in my genital and anal area.
the discomfort was more rough and started to wake me up.
began to cross my legs to try and rid (myself of) the
discomfort. I opened my eyes again and again saw (you) with
his hand up my shorts.
testicle, and trying to penetrate my rectum with his
fingers.
as he pulled his hand out of my shorts and smelled his
fingers.
At this point
inner thigh and began masturbating me again.
I became aware of what was going on and that what was going
on was real.
to sit up in the lawn chair as (you) removed his hands from
me and started apologizing.

I was still trying to realize what was happening

(You) then quickly placed his hands back to my

I became awakened from my sleep and started

He was masturbating me, feeling my

I

I told (you) that I also knew about

I was in instant shock and I didn’t know what to say or how
to react.
He began to apologize as I said to him “WHAT THE
HELL ARE YOU DOING!”
the other guys he had done this to before.
to me that he had masturbated (S) and (Ca) before.
began to tell me how he had a “crush” on me when I first
(transferred) here and how he also had a “crush” on
(another servicemember).
how difficult it was being in the Navy yet still in the
closet.
to a near by tree to urinate.
chair he began to tell me how difficult it was working with
all of us .

At this point I got up from my lawn chair and went

. and living a lie. (emphasis in text)

(You) started explaining to me

As I returned to my lawn

(You) admitted

He then

.

During this conversation I was in disbelief and shock about
I then laid on my lawn chair
what had just happened to me.

2

and turned the other way so I could not look at or see
(you) and I remember thinking to myself:
happen,” “Do I tell somebody,” Did anyone see?”
on the lawn chair for about 30 minutes of wonder(ing) what
I should do.

“What is going to

I stayed

I must have fallen asleep because the next thing I recall
was waking up the next morning about 0600, 19Apr97, and
realizing I had spent the night on the lawn chair.
up and cooked breakfast for everyone .

I got

.

.

(you) at work I got angry

My mind was sickened by the

Many thoughts ran through my mind.

For the past two weeks I have thought about what I should
do about this situation.
thought of it. When I saw .
and very uncomfortable.
I didn’t want to ruin the great working and off duty
relationship we all had at (our) department.
to be the one who destroyed (your) 18 year career.
didn’t want to tell my wife and maybe destroy my marriage.
I didn’t know where to turn, but I knew I was disgusted and
full of anger that he had violated me while I was sleeping
and with my wife and friends close by.
could (not) keep this incident inside me anymore.
rage, disgust and anger just kept adding up inside me and I
had to tell someone so I told my friend,
told me I should report this incident.

On 2May97, I just

I didn’t want

. and he

The

I

.

.

Elsewhere in his statement, CE2 0 admitted he had heard about
other incidents that convinced him that you were homosexual.
also mentioned an incident in which you “grabbed me and kissed me
while putting his tongue down my throat.”
stated that one of the reasons he invited you on the camping trip
was “he had never tried anything with me .

However, CE2 0 also

He

.

On 7 May 1997 the NCIS agent obtained a statement from
Cryptologic Technician Third Class (CTM3; E-4) Ca, one of the
individuals referenced in CE2 0’s statement.
two or three years ago, on New Year’s Eve, while he was spending
the night in your barracks room, you masturbated him while he was
trying to sleep.
concerning a homosexual act between you and CTM1 S, the other
individual mentioned in CE2 0’s statement.

CTM3 Ca also stated that he had heard rumors

CTM3 Ca stated that

On 9 May 1997, after being interviewed by Special Agent P, you
executed a sworn statement that reads, in part, as follows:

I can not say exactly when, but for a long time I have
known that I am a bi—sexual.
concerning my sexual involvement with three members of my
coimnand.
these incidents occurred after I had consumed a large
amount of alcohol.

I would like to start by saying that all three of

I was questioned .

.

3

.

. when I

I was at the club .

I believe the first incident occurred on New Year’s Eve two
or three years ago.
overheard (CTM3 Ca) say that he had no place to stay for
the night. I offered to let him sleep in my room and he
accepted so we left the club for my room. We arrived .
and we both laid on the floor to go to sleep.
the floor often for my back.
when he laid down on the floor to sleep.
While we were on
the floor, I reached over and touched (Ca’s) penis through
his underwear.
that he was not that way and was not interested because he
got up, put on his pants and left my room .

As soon as I touched (Ca) he let me know

(Ca) was in his underwear

I slept on

The second occasion was sometime around the summer of 1994
I was at a party at CTM1 (S’s) apartment out in
or 1995.
town on Okinawa, Japan.
While at this party, (5) went to
bed and while he was sleeping in his bed, I went into his
room and laid on his bed beside him.
wearing a pair of shorts and a shirt at the time.
was laying next to (S), I touched his penis through his
shorts.
asleep because he just rolled over away from me.
me the feeling that (5) was not interested so I did not
touch him again or pursue the issue .

When I touched (5), I think he was asleep or half

I think (5) was

While I

This gave

.

.

.

On 13 May 1997 you were placed on report for committing an
indecent assault upon CE2 0 on the night of 18-19 April 1997, in

4

.

.

.)

I noticed CE2 (0) was sleeping

After eating dinner

. with a group of people

During the day and evening of

When I awoke (sometime between the evening of
. and l9Apr .

The last occasion was during the weekend of l8-19Apr97 I
was invited on a camping trip .
from my work section.
18Apr97, I had drank probably a 12 pack of beer and a
bottle of sake (Japanese rice wine).
for the evening, I was sitting around a campfire we had
built and apparently I fell asleep in a lawn chair next to
the fire.
l8Apr .
in a lawn chair near me by the camp fire.
When I noticed
(0) sleeping in the lawn chair he was just wearing a pair
of shorts with no shirt on.
reached under his shorts and started touching his penis.
would estimate that I was touching (0’s) penis for about
10-15 minutes before he woke up.
leaned over and started talking to me.
wasn’t that way (meaning he was not gay) and told me that
heunderstood that I was.
suspect(ed) or knew that I was gay.
that I was not gay that I was bi-sexual.
away or freaked out when he woke up, but he let me know
that he did not want me to touch him so I stopped.
I stayed up for quite some time just talking about his
sister and my sexual orientation.
While we were talking,
we both must have fallen asleep because when I woke up it
was morning .

(0) told me that he always

When (0) woke up he just

I explained to him

(0) never jumped

While (0) was still sleeping I

(0) told me that he

(0) and

The PlO then recommended nonjudicial punishment

A preliminary investigating officer (PlO) took another

violation of Article 134 of the Uniform Code of Military Justice
(UCMJ).
statement from CTM3 Ca, who essentially reiterated his earlier
allegation.
(NJP) for the incident with CE2 0, but not for the allegation
pertaining to CTM3 Ca because of the expiration of the two-year
statute of limitation for NJP.
Accordingly, on 14 May 1997 the
commanding officer (CO) of NSGA Hanza imposed NJP upon you
consisting of a reduction in rate to BU2, forfeitures of pay and
restriction.

On 20 May 1997 the CO of NSGA Hanza initiated administrative
separation action by reason of “misconduct—commission of a
serious offense as evidenced by CO’s NJP 15 May 1997 for
violation of the UCMJ, Article 134 (Indecent Assault); homosexual
conduct—as evidenced by engaging in an unsolicited homosexual
act.”
administrative discharge board (ADB).

One day later, you elected to present your case to an

On 5 June 1997 CE2 0 signed a statement in which he declined the
opportunity to testify at the upcoming ADB because he was
disgusted at your incident assault upon him and did not desire to
be in the same room with you.

At that time, the recorder

The ADB met on 6 June 1997.
introduced documentary evidence including the written statements
of CE2 0, CTM3 Ca and you.
USMC, did not object to any evidence introduced by the recorder.
He did introduce portions of your service record, which
documented excellent performance over the years, and material
pertaining to separation pay and veterans’ benefits.
recorder then presented testimony from the NCIS agent, the PlO
and CTM3 Ca.
Your counsel presented testimony from a civilian
co—worker.

Your counsel, Captain (CAPT; 0-3) Co,

The

At an ADB, a respondent may either testify under oath, like all
other witnesses, or make an unsworn statement.
statement is given, cross—examination is not permitted.
This is
the course of action you chose and your statement reads, in part,
as follows:

If an unsworn

•

.

.

(I)f all of the victims of my misconduct were present

I would apologize to them for my behavior. I mentioned to
(Special Agent P) that I was bi-sexual.
stemmed from a rape that happened when I was about 10 years
old after a teenager of my church group raped me.
repeatedly raped me and forced me to perform oral sodomy on
him. Later he involved another friend.
was beaten and bruised.
not want anyone to know. This is the first time I’ve ever
talked about it tot anyone.

I didn’t tell anyone because I did

The first time I

I think this

He

-

Each of the incidents I’m here for occurred while I was
under the influence of alcohol.

I started drinking at a

5

I’ve been involved in a few fights because of

young age.
alcohol but I’ve never had any alcohol abuse treatment.
I’m now receiving treatment for my alcohol problem and
talking to counselors at the Family Service Center.

I understand this (ADB) can separate me from the service.
However, my desire is to remain in the Navy to continue my
career.
sure that conduct of this nature
will ever (sic?) be repeated again but with counseling it
helps to minimize the possibility.
It will be hard but I
would like to complete my career and retire .

I can’t be 100

After considering all of the evidence, the ADB unanimously found
that you had committed misconduct and homosexual conduct as
alleged, and unanimously recommended discharge under other than
honorable conditions.

On 18 June 1997 you filed a formal sexual harassment claim
against CE2 0, alleging that over a period of two years he had
grabbed your penis and buttocks, committed similar abuse against
other Sailors and Japanese nationals, and left obscene messages
in your office.
You also stated that “my military lawyer, CAPT
(Co) asked me (has CE2 0) ever touch (sic) me, I say yes and told
him about some of (0’s) continue (sic) sexual harassment toward
me.” Elsewhere in the complaint, you also alleged that “I inform
(sic) my lawyer about this and nothing was done.”

In response to your sexual harassment complaint, the CO of NSGA
Hanza directed an investigation, which was conducted by
Lieutenant (LT; 0-3) G.
and took written statements from your supervisor, CE2 0’s
supervisor and the NCIS agent.
his report which reads, in part, as follows:

He interviewed a number of individuals

On 24 June 1997 LT G submitted

•

.

. I learned that CE2 (0) is known for wrestling around

None of the co—workers whom I

and “horse play” in which physical contact is made with
other male individuals.
interviewed could cite a specific date or time, however,
each one was sure that Petty Officer (0) had “horse played”
with (you) at one time or another.
not (you) had participated in the “horse play,” all of the
interviewees said that (you) had.
interviewees said that at no time did they ever hear any
comments by (you) stating that this behavior was unwelcome.
Additionally, when I reviewed CE2 (0’s) Division Officer’s
Record, I found no mention of poor personal behavior even
though (you were) (CE2 0’s) supervisor for a majority of
this period.
written by (CE2 0), there was no physical evidence
supporting this claim, and when I questioned (the
individual) who (you) claimed translated some of the
messages, he stated that he had never seen such a message.

With regard to the alleged lewd messages

When asked whether or

Further, all

6

. Because the case

I also interviewed Agent (P), an NIS agent who investigated
(you) for the UCMJ violation .
involved a claim by (CE2 0) against (you), it seemed
logical that the alleged sexually harassing behavior by
(CE2 0) would have surfaced during that investigation.
(The agent) stated that (you) made no such claims against
(CE2 0) during the course of his investigation.
contacted (your) defense counsel for that case, he would
not answer any questions with regard to (your) statements
to him, citing attorney-client privilege.

When I

I attempted to interview (CE2 0) to discuss this
investigation, however he would not discuss any matters
pertaining to this case without legal assistance.

My findings are that this harassment claim is by and large
unsubstantiated.
It is probable that there was physical
contact between (CE2 0) and (you) when “horsing around.”
However, considering (your) position of authority over (CE2
0), he had the opportunity to correct this behavior through
counseling or other means, if indeed the “horse play” was
unwelcome.
Additionally, considering that this behavior
was supposedly unwelcome for a period of about two years
and that no written documentation exists until after the
UCMJ conviction .
form of retribution against (CE2 0).

, this claim has the appearance of a

.

.

In my opinion, there. are facts that support that horseplay
Since horseplay may be considered as unwelcome
did occur.
to some, counseling should be conducted on (CE2 0).
There
is no substantiating evidence to suggest that any of the
horseplay was unwelcome to (you) prior to filing a formal
complaint.
harassment complaint is unjustified.

Therefore, in my opinion, this sexual

You were advised of the foregoing findings and conclusions on 7
July 1997 and requested a review by higher authority.
does not disclose the results of that review.

The record

Meanwhile, on 23 June 1997 the CO forwarded your case to the
Bureau of Naval Personnel (BUPERS), recommending approval of the
ADB’s findings and recommendations. In his letter of that date,
the CO stated as follows:

(You have) no potential for further useful Naval service.
Additionally, (you), when asked, filed to provide any
assurance that he would not again engage in similar
misconduct.

(You) filed a formal sexual harassment charge against one
of the victims on 19 June 1997.
It appears this charge has
no substantiation and one may reasonably infer that it is a
spiteful attempt to bring the victim down out of
retribution.

Therefore, I approve the findings of the

7

(ADB) and recommend separation with an Other Than Honorable
discharge.

In this regard, you said that LT

On 10 July 1997 you submitted a letter to the Commander, Naval
Forces Japan, addressing the sexual harassment complaint and the
unfavorable action taken on it.
G never should have been appointed to investigate your complaint
since he and CE2 0 both worked “in the same small compound.”
also reiterated many of the specific allegations in the
complaint, and specifically took issue with the statement of
Agent P to the effect that you had not mentioned any harassment
by CE2 in the interview.
mention (sic) in conversation that (0)
(had) been touching me.”
Concerning your failure to complain about CE2 0 earlier than he
did, you admitted, “I can’t explain why I did not report this.”
You also criticized CAPT Co as follows:

In this regard, you stated that “I also

You

I don’t have much to say about my lawyer Captain (Co)
because he inquired about (0).
and he did nothing.
me without prejudice.
only thing he conveyed to me was I should have gone to
jail.
not have my interest in the case and the harassment would
not be acted upon.

After hearing this a few times, I realized he did

After my one of two meetings, the

I thought my lawyer was there to help

I informed him about (0)

You also retained civilian counsel after the ADB and on 11 July
1997 she submitted a letter to BUPERS, essentially requesting
that the findings and recommendations of the ADB be set aside.
In her letter, she reiterated the allegations of sexual
harassment made by Petitioner against CE2 0.
the performance of CAPT Co as follows:

She then criticized

(The) instances of touching .

.

. by CE2 (0) and the

•

.

.

things he did to (you) were all brought to the attention of
(your) military counsel, then CAPT Jeff (Co)
None of this was brought out at the (ADB).

(now Major).

CE2 (0) did not desire to testify at the hearing and was
not called to testify by the Government.
statement was submitted to the (ADB) for consideration.
Considering the importance of the testimony of CE2 (0) in
this (ADB), Major (Co) could have demanded that CE2 (0)
appear to testify.
At that time, Major (Co) could have
cross—examined him on his behavior toward (you), and the
fact that he, over a two year period of time,
inappropriately touched (you) and delivered explicit
messages to him.

His written

-

CE2 (0), over two years ago, began questioning others about
(your) past, gathering information on him about any
homosexual tendencies, then thereafter using this
information against him to (sic) harassing him and making
advances toward him, touching him in a sexual manner.

This

8

information was brought to the attention of Major (Co);
however, this information was not brought to the attention
of the (ADB) in any manner whatsoever.

According to regulations, the respondent’s counsel has the
opportunity to submit a “letter of deficiency” to the
Convening Authority .
. Given the opportunity to address
the recommendation of the (ADB), and issues which occurred
during the hearing, Major (Co) chose not to submit a letter
Qf deficiency.
for the Convening Authority to consider in making his
decision.

As such, there was no input by Major (Co)

.

As such,
Major (Co) had not

(You) came across as being unable to assure the

Although (you) wanted ~to tell his side of the story to the
(ADB), and answer any questions they had of him, Major (Co)
directed (you) to make an “unsworn” statement.
only Major (Co) could question him.
prepared (you) for testifying in any form, sworn or
unsworn.
(ADB) that he would not again engage in similar misconduct.
The answer he provided (“I can’t be 100
sure that conduct
of this nature will ever be repeated again but with
counseling it helps to minimize the possibility.”) was
definitely an answer a client would give if that client’s
attorney had not prepared him to testify.
according to (you), he was trying to convey that he could
assure the (ADB) that this behavior would not continue, and
that he was in counseling as well as attending AA to show
that he is taking steps to address these issues, further
ensuring that the behavior would not continue.

However,

•

.

. Based on the above, the actions of (your) counsel

preparing for and during the (ADB) were outside the range
of professionally competent assistance.
apparent that (your) counsel effectively denied him a fair
day in the (ADB).

(you were) prejudiced .

As such,

It is readily

Meanwhile, sometime between 7 and 10 July 1997, a memorandum was
prepared by the Assistant Chief of Naval Personnel (CNP) for
Military Personnel, Performance and Security recommending your
discharge under other than honorable conditions by reason of
misconduct due to commission of a serious offense.
officials within BUPERS favorably endorsed the memorandum and, on
15 July 1997, such action was personally directed by CNP, acting
in his capacity as Deputy Chief of Naval Operations for Manpower
and Personnel.
In this regard, it is unclear whether any of the
endorsers or CNP reviewed civilian counsel’s letter of 11 July
1997.

Several

On 30 July 1997 you sent a letter to CNP requesting a new ADB due
to the failure of CAPT Co to properly represent you.
letter, you alleged as follows:

In that

9

•

.

• I was assigned Captain (Co)

.

.

. as my defense
, he

I told Mr. (Co) yes, that (0) has

counsel. During my first interview with Mr. (Co)
questions me about Petty Officer (0) and if this individual
ever done (sic) anything to me to give me the idea that he
was interested in you.
been grabbing me from behind and rubbing his genital(s)
against my buttocks, trying to touch my genital(s) and
leaving lewd sexual notes and messages on my white board in
my office.
going on for nearly two years and that I told him to stop.
Mr. (Co) was giving (sic) some names by me of people he
could interview, but on my second meeting Mr. (Co) has not
spoken to anyone about my claim.
that he was too busy with other cases.
this and my (ADB) was the next day at thirteen hundred
hours.
that worked in the office where I work.
He also instructed
me to give an unsworn statement so he would be the only one

He said he would try and contact (an individual)

I informed him that this behavior has been

CAPT (Co) informed me

I could not believe

questioning me.

My defense counsel did not question

During the (ADB) I was upset that the (ADB)

any witness and myself doing (sic) the (ADB) about (0’s)
behavior.
member(s) did not get a chance to hear all the facts
containing (sic) to my cases and that their decision would
not be fair due to Captain (Co’s) inability to present
information.

However, on 1 August 1997, in accordance with the action of CNP,
you were discharged under other than honorable conditions by
reason of misconduct.
months of active service.

At that time, you had about 18 years and 4

Para. 63b, Part IV, Manual for

It is well settled that an indecent assault occurs if an

The Board first considered the contention that the NJP should be
removed from your record because the evidence fails to reflect
that you used force or violence in committing the act reported by
CE2 0.
individual assaults a certain person with the intent to gratify
his lust or sexual desire, and such conduct is prejudicial to
good order and discipline.
Courts—Martial (MCM).
unlawful force or violence, to do bodily harm to another, whether
or not the attempt is consummated.
It must be done without the
victim’s consent and any offenpive touching, however slight, is
sufficient to constitute bodily harm.
Para. 54c(l) (a), Part IV,
In applying this standard to your case, it is clear to the
MCM.
Board that you used unlawful force or violence against CE2 0
because he never consented to your touching him.
Along these
lines, the Board noted that an individual who takes liberties
with a sleeping individual is guilty of an indecent assault.
United States v. Brigg’s, 46 M.J. 699, 701-02 (A.F.Ct.Crim.App.
1996).

Accordingly, this contention lacks merit.

An assault is an attempt or offer, with

The Board next considered your contention that contrary to the
dictates of the Sixth Amendment to the Constitution, you were
denied your right to confront the witnesses against you at the

10

The Sixth Amendment states that “in all criminal

ADB.
prosecutions, the accused shall enjoy the right .
confronted with the witnesses against him and to have compulsory
process for obtaining witnesses in his favor.”
involves an administrative separation from the military and not a
criminal prosecution, this contention is without merit.
Milas v.
United States, 42 Fed.Cl. 704 (1999).

Since your case

. to be

.

The Board also rejected your contention that the Sixth Amendment
was violated because you did not receive effective assistance of
counsel from MAJ Co.
In this regard, the Board first noted that
a servicemember is guaranteed effective assistance of counsel not
only by the Sixth Amendment but also UCMJ Article 27(b), which
states that defense counsel detailed at a general court—martial
must be “certified as competent.”
M.J. 268, 270 (1996).
Naval Military Personnel Manual (MILPERSMAN) make this guarantee
applicable to an ADB respondent by stating that such an
individual is entitled to “qualified counsel,” and defining that
term as “counsel qualified under Article 27(b) of the UCMJ.”

Articles 3640200.7 and 3620200.lv of the

United States v. Marshall, 45

Strickland, at 687.

Investigation is an essential part

Strickland v. Washington, 466 U.S. 668, 687

However, a two—part test must be met in order to prevail on a
claim of in effective assistance of counsel——the performance of
the lawyer must be deficient and the client must be prejudiced by
the deficiency.
(1984); United States v. Polk, 32 M.J. 150, 153 (CMA 1991).
deficient performance prong of this test requires that the
lawyer’s errors be so serious that he was not functioning as
counsel.
of the adversary process, and counsel has a duty to investigate
or make reasonable decisions that make investigation unnecessary.
Wade v. Arrnontrout, 798 F.2d 304 (8th Cir. 1986).
strong presumption exists that counsel is competent.
individual must rebut that presumption by pointing to specific
errors by counsel which were unreasonable under prevailing
professional norms. United States v. Cronic, 466 U.S. 648 (1984).
The prejudice part of the test requires a showing that counsel’s
errors were sufficiently serious to deprive the client of a fair
and reliable hearing.
Scott, 24 M.J. 186, 188 (CMA 1987).
reasonable probability exists that but for counsel’s errors, the
result of the proceeding would have been different.”
probability is reasonable only if it is “sufficient to undermine
confidencein the outcome.”

One must show that “a

Strickland, at 694.

Strickland, at 690.

United States v.

A

The

However, a

An

After carefully considering your contentions of ineffective
assistance of counsel, the affidavit of MAJ Co, and the responses
of you and your counsel to that affidavit, the Board concluded
that his assistance to you was not ineffective in that his
The Board was unable to find
representation was not deficient.
that MAJ Co committed any procedural or substantive errors.
To
the extent that your version of events differs from that of MAJ
C, the Board concluded that he was more credible and worthy of
belief.

11

Along these lines, you allege both a property and a

The former article required separation upon a finding

The Board also found no merit to your contention that since the
Navy failed to comply with the provision of the MILPERSMAN
Article 3610240.le concerning rehabilitation and retention, your
right to due process of law under the Fifth Amendment was
violated.
liberty interest in continued military service.
However, the
Board saw no need to determine whether you had such interests
since it concluded that MILPERSMAN Article 3630400.lc(1)(a-e),
and not Article 3610240.le, provided the applicable guidance in
your case.
that an individual committed homosexual acts unless those acts
were a departure from the s~rvicemember’s usual behavior,
unlikely to recur and not accomplished by the use of force; the
member’s continued service was consistent with good order and
discipline; and the member had no propensity or intent to engage
in such acts.
stated that an ADB must recommend separation if it finds that an
individual committed a homosexual act “unless the (ADB)) finds
that retention is warranted under the limited circumstances
described (above).”
“the member shall bear the burden of proving .
is warranted under the limited circumstances .

Additionally, Article 3630400.3f stated that
. that retention

This was buttressed by Article 3630400.3b, which

.“

.

.

In your written

Consequently, the Board concluded that you failed to show, by a
preponderance of the evidence, that retention was warranted under
the limited circumstances set forth above.
statement to NCIS, you admitted to homosexual acts with three
individuals during a three-year period.
not be said that such acts were a departure from your normal
behavior or unlikely to recur, or that you had no propensity to
commit such acts in the future.
these individuals by committing homosexual acts while they were
sleeping, the acts were accomplished through some degree of
force.
Finally, since these acts were committed with other
servicemembers, your retention would not be consistent with good
order and discipline. Accordingly, the Board concluded that given
the applicable provision of the MILPERSMAN, no reasonable ADB
could possibly believe that your retentibn was warranted.

Further, since you assaulted

Accordingly, it could

The Board also rejected the contention that your administrative
separation was barred by 10 U.S.C. § 1176(a).
law states, in pertinent part, as follows:

That provision of

(a) Regular members.——A regular enlisted member who is
selected to be involuntarily separated, or whose term of
enlistment expires and who is denied reenlistment, and who
on the date on which the member is to be discharged is
within two years of qualifying for .
Fleet Reserve .
the member is qualified for transfer .
member is sooner retired or discharged under any other
provision of law.

shall be retained on active duty until

. transfer to the

. unless the

.,

.

.

.

12

S 1169(1) provides for discharge of a regular enlisted

10 U S C
member prior to the expiration of his term of service, as
prescribed by the service secretary.
Instruction (SECNAVINST) 1910.4B and the MILPERSMAN implement S
1169 by providing policy and guidance on enlisted administrative
Accordingly, you were
separations in the Navy such as yours.
discharged “under any other provision of law” and the 18—year
safety zone prescribed by S 1176(a) did not apply to you.

Secretary of the Navy

Additionally, the legislative history of § 1176(a) indicates that
this provision of law was intended to “provide the same tenure
protection to enlisted members that is afforded under current law
to officers who have completed 18 but less than 20 years of
active duty for retirement eligibility purposes.”
No. 102—966, l02~ Cong., 2’~”~Sess. 709, reprinted in 1992
U.S.C.C.A.N. 1636, 1800.
officers in 10 U.S.C. §5 631 ~nd 632, both of which provide for
the involuntary discharge of officers who twice fail to be
promoted unless they have 18 years of service, in which case they
are retained until they attain retirement eligibility.
However,
both statutes state that the 18-year safety zone is inapplicable
if an officer is “sooner retired or discharged under another
provision of law.”
separation of a regular officer for cause, as provided for in
Chapter 60 of Title 10, is not precluded by §5 631 or 632, your
separation for cause under § 1169 and the implementing directives
was not affected by § 1176(a).

Such protection is afforded for regular

Accoi~dingly, just as administrative

H.Conf. Rep.

The Board also found no merit in your assertion that
characterization of your service as under other than honorable
conditions was improper since your homosexual acts did not fall
within any of the aggravating factors set forth in MILPERSMAN
Article 3640300.5c(1-7). In this regard, the Board noted that you
were processed for separation by reason of both homosexuality,
under MILPERSMAN Article 3630400, and misconduct due to
commission of a serious offense, under Article 3630605.
found both reasons were substantiated and recommended discharge
under other than honorable conditions.
In directing discharge,
CNP was governed by Article 36l0220.2a which required him to
“choose the most appropriate reason when affecting discharge,”
and stated that “normally, the .
reasons •
3630400 authorized characterization of service as honorable,
general or other than honorable for members discharged due to
homosexuality.
reason of misconduct due to commission of a serious offense
normally are discharged under other than honorable conditions.
Accordingly, misconduct by reason of commission of a serious
offense was the least favorable reason for separation.
Therefore, CNP did not err in designating it as the reason for
separation in your case, and characterization as under other than
honorable conditions also might be deemed proper.

Article 3630605 stated that members separated by

. will be the reason for separation.”

. least favorable of the

The ADB

.

Article

.

13

Most such

It seems clear, however, given the provisions of

Whether the reason for separation in your case was homosexuality
or misconduct due to commission of a serious offense, the
underlying basis for discharge was a homosexual act.
acts constitute sodomy, a violation of UCMJ Article 125, or an
indecent act or assault, both violations of Article 134.
serious offenses, as that term is defined in MILPERSMAN Article
3630605.
Article 3630400•5c (1-7),’ that the’ drafters of the MILPERSMAN did
not intend that an individual be separated under other than
honorable conditions because of homosexual acts unless the acts
fell within one or more of the aggravating factors set forth
therein.
homosexual acts did not fall within one of those factors, your
discharge under other than honorable conditions would be improper
or, at the very least, unfair.
However, it is clear to the Board
that your homosexual acts fell within Article 3630400.5c(l),
since they involved “force, coercion or intimidation.”
Therefore, the Board concluded that your discharge under other
than honorable conditions was not only proper but also
appropriate.

Accordingly, the Board concluded that if your

All are

Finally, the Board concluded that you are not entitled to
“whistleblower” status under 10 U.S.C. § 1034.
implemented by Department of Defense Directive 7050.6 and
SECNAVINST 5370.7B.
rights to military members who allege reprisal for making a
However, these directives make it clear
protected communication.
that such procedures are only available if the individual makes a
timely complaint of reprisal to the DOD or Navy Inspector
General.
entitled to those procedural protections.

Since you never filed such a complaint, you are not

These directives provide specific procedural

This statute is

In his letter of 23 June

Turning to the substance of your complaint of reprisal, the Board
concluded that it was without merit.
1997, the CO of NSGA Hanza opined that your sexual harassment
complaint was unsubstantiated and spiteful.
belief that his recommendation for discharge under other than
honorable conditions was not based on any desire for retaliation
on his part, but solely on his belief that the findings and
recommendation of the ADB were correct and appropriate.
Board found that he had no motive to retaliate against you since
you made no allegations against him, but only against CE2 0.
Further, he himself directed the investigation in your case, and
his comments only echoed those of the investigating officer.

It is the Board’s

The

Accordingly, the Board concluded that no corrective action is
warranted, and your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

It is regretted that the circumstances o~ your case are such that
favorable action cannot be taken.
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

You are entitled to have the

14

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 a probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER

Executive Director

Enclosure

15