DEPARTMENT OF  THE  NAVY 

B O A R D   F O R   C O R R E C T I O N   O F   N A V A L   R E C O R D S  

2   N A V Y   A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

TRG 
Docket No: 3392-01 
4 April 2002 

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 26 March 2002.  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. 

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 in justice. 

You enlisted in the Navy on 18 January 1994 and reenlisted on 26 
June 1998.  The record shows that during the period from 8 March 
1998 until 1 March 1999 you served as a corpsman with the 2nd 
Marine Division in an excellent manner.  During this period, you 
were advanced to HM2  (E-5).  In the performance evaluation for 
the period ending 1 March 1999, you w~:lt, assigned an individual 
trait average  (ITA) of 4.0 with a recommendation for early 
promotion. 

On 3 March 1999 you reported to the Naval Hospital, Jacksonville, 
Florida.  In the performance evaluation for the period ending 15 
March 2000, you were assigned an ITA of 3.57 with a "must 
promote" recommendation.  However, on 30 October 2000 you were 
counseled concerning disrespect towards a commissioned officer 
and warned of the possible adverse consequences of continuing 
that behavior.  Subsequently, you were counseled on several 
occasions concerning your disrespectful and disruptive behavior 
in the hospital . 
On 25 January 2000, LT H I  the Physical Therapy Division Officer 
submitted a memorandum for the record concerning your behavior 
which states, in part, as follows: 

. . .  if (his) behavior continues to be unbecoming of an 
E5, he should be separated from the Navy.  He has been 
given ample opportunity to correct his behavior and to 
make a positive impact on the PT department.  His 
actions are on the borderline of insolence and 
disrespect to an officer.  As of yet, his behavior and 
actions have not changed and he continues to be a 
determen t to the department . 

On 25 January 2001, Petty Officer W stated that he did not 
believe you were disrespectful since you were raising legitimate 
issues concerning duty assignments.  However, he further stated 
that LT H may have had a different perception of the 
conversation.  Petty Officer W also stated that a Mrs. D told him 
that you had called LT H a "fucking bitch" after she left the 
room and that he had informed LT H of this comment.  Later, 
Petty officer S stated that he was present during the 
conversation with Petty Officer W and he did not believe you were 
disrespectful.  On 29 January 2001, at the request of LT H, Ms. 
Sherry L D submitted a statement to the effect, that you were 
disrespectful to LT H, were neglecting your physical therapy 
patient, and were very angry.  She stated that after LT H left 
the room you called her a "fucking bitch". 

Subsequently, charges of disrespect, dereliction of duty and 
disobedience were preferred against you.  Additional charges of 
disobedience and making a false official statement were later 
dropped.  Prior to the nonjudicial punishment (NJP), members of 
your chain of command submitted comments.  The leading chief 
petty officer stated that your repeated inappropriate behavior, 
despite counseling and warnings, had caused conflict with the 
department.  The chief felt the charges were valid and that you 
should not be retained in the Navy.  The department head stated 
that you had repeatedly challenged department personnel and, 
despite verbal and written counseling, had failed to demonstrate 
improved teamwork. 

You received NJP on 22 February 2001.  During the NJP, 
individuals in your chain of command apparently testified 
essentially as set forth in their written comments.  In 
connection with the NJP, you submitted a statement from a retired 
chief petty officer who was present during at least part of the 
period at issue.  He stated that you helped him with his physical 
therapy, he did not considered you derelict in the performance of 
your duties, and he had not seen any disrespectful conduct from 
anyone.  After considering all of the evidence, the commanding 
officer imposed punishment of a reduction in rate from HM2  (E-5) 
to HM3  (E-4); forfeiture of $413 pay per month for two months, of 
which the second month was suspended; and 45 days of extra duty. 

You appealed the NJP on 27 February 2001.  You claimed that Ms. D 
fabricated the whole scenario due to a previous difference of 
opinion with you.  You pointed out that Petty Officer W stated 
that he did not believe you were disrespectful, and another petty 
officer agreed that you were not disrespectful but merely 
pointing out things that needed to be fixed.  You also point out 
that a patient who was present had submitted a statement to the 
effect that you were not derelict in the performance of your duty 
and were not disrespectful.  You also complained that you were 
improperly denied witnesses, were not allowed to see all 
documents prior to accepting NJP, and were not allowed to make a 
statement in your defense at NJP. 

The commanding officer stated in the endorsement on your appeal, 
in part, as follows: 

. . . .  I took into account all of the oral and written 
evidence presented.  . . . .  in my opinion a preponderance 
of the evidence showed that  (he) did in fact commit the 
charged offenses and at the time of the hearing 
understood the ramifications of his decision to appear 
at NJP. 
. . .  A1 though  (he) was not provided with a copy of the 
comments prior to NJP, it was not prejudicial to his 
defense, nor did it make the punishment unjust or 
disproportionate.  The members of the chain of command 
were present, made statements and were available to 
answer questions . . . .  During NJP, I asked  (him) if he 
would like to comment on or ask any questions to the 
members of his chain of command who had spoken, but he 
declined. 

(He) states that he was not allowed to fully make an 
oral statement in his defense at NJP.  I asked a series 
of questions to  (him) with regard to the charges 
against him.  Only when he did not direct his answer to 
the question I posed was he asked to give a "yes or no" 
or "true or false" response.  When asked if he would 
like to make a statement, (he) chose not to address the 
issues before me, but rather, chose the hearing to 
voice his concerns about the chain of command.  Only 
once he went outside the defense to the charges 
presented did I ask him to address the issues.  No 
other restraint was placed on his freedom to make a 
full statement.  Additionally, (he) provided me with 'a 
detailed letter and evidence that spoke to the offenses 
charges.  In other words, (he) was provided with an 
adequate opportunity to present evidence and testify in 
his own defense. 

(He) was counseled by LT Frank  (G), JAGC, USNR, . . . .  
who was aware that the command was contemplating court- 
martial charges.  (He) was never promised anything to 
accept NJP, but was made aware of the consequences 
associated with a finding of guilt at a court-martial. 

On 9 March 2001, the Commander, Navy Region Southeast denied the 
NJP appeal. 

On 26 April 2001 you agreed to remain on active duty beyond the 
expiration of your enlistment to receive medical treatment.  In 
the performance evaluation for the period ending 22 February 2001 
you were assigned an adverse mark  of 1.0 in military 
bearing/character and were not recommended for retention in the 
Navy.  You were honorably discharged on 18 August 2001.  At that 
time, you were not recommended for reenlistment and were assigned 
an RE-4 reenlistment code. 

In your application you contend that you were unfairly treated, 
essentially raising the same issues as in the NJP appeal.  You 
contend that you were coerced into giving up your right to have 
the charges against you considered by a court-martial.  You claim 
that representatives of the command told you that if you were 
convicted by a court-martial, you could receive a severe sentence 
and have a felony conviction on your record.  Further, you 
alleged that you were led to believe that if you accepted NJP, 
the charges would either be dismissed or you would receive 
minimal punishment.  You also contend that you were denied leave 
until you agreed to accept NJP, and point out that none of your 
requested witnesses were present.  You state that you were 
directed by the commanding officer to answer a series of "true or 
false" and "yes or no" questions.  Concerning the statements made 
by individuals in the chain of command that you were disruptive 
and created a hostile environment since your arrival at the 
command, you point out that you were never counseled about any 
problems until 30 October 2000.  You again assert that you are 
innocent of the charges, Ms. D. has a reason to make a false 
statement, and statements from others showed that you were not 
guilty of the charges. 

The Board weighed your excellent service prior to reporting to 
the naval hospital against the documentation concerning your 
difficulties with your superiors at the hospital.  However, the 
Board concluded that you were on notice that your behavior was 
unacceptable, but you persisted in that behavior.  The Board 
reviewed the statement of Ms. D but noted that there did not 
appear to be any motivation for her to make a false statement. 
The Board also noted that Petty Officer W stated that Ms. D told 
him of the disrespectful comment shortly after it was made.  He 
then told LT HI who then called Ms. D.  The Board also considered 

the statement of the retired chief petty officer who stated that 
you were not derelict in your duties while you were treating him 
and that he did not see any disrespect.  Finally, the Board noted 
that there was no evidence that you were coerced into accepting 
NJP.  The advice you received concerning the possible severity of 
a court-martial sentence and felony conviction was certainly 
accurate.  The Board concluded that there was sufficient evidence 
for the commanding officer to conclude, by a preponderance of the 
evidence, that you were guilty of disrespect, disobedience and 
dereliction of duty, and there was no abuse of discretion in this 
regard.  Further, given the adverse comments of members of your 
chain of command, the Board could not conclude that a punishment 
that included a reduction in rate was too severe.  The NJP and 
adverse performance evaluation were found to be sufficient to 
support the assignment of the RE-4 reenlistment code. 

Accordingly, 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 PFE IFFER 
Executive Director