DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0 TRG

Docket No: 4591-00
15 October 2001

Chairman, Board for Correction of Naval Records
Secretary of the Navy

RECORD OF

(a) Title 10 U.S.C. 1552

(1) Case Summary
(2) Subject's naval record

From:
To:

Subj:

Ref:

Encl:

Pursuant to the provisions of reference (a), Petitioner, an

1.
enlisted member of the Navy,
requesting that his record be corrected, in effect, by removing
the nonjudicial punishment (NJP) of 17 December 1998 and related
performance evaluations from his record.

filed enclosure (1) with this Board

2.
The Board, consisting of Mr. Harrison, Mr. Geisler and Mr.
Rothlein, reviewed Petitioner's allegations of error and
injustice on 25 September 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes,

regulations and policies.

Documentary material

The Board, having reviewed all the facts of record pertaining

3.
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.

Petitioner's application was filed in a timely manner.

C .

Petitioner enlisted in the Navy on 8 August 1994 for

He was released from active duty on 24 August 1997

four years.
to enter an officer training program.
for six years on 22 January 1998 for the purpose of being
accepted into the enlisted commissioning program.
When this
occurred he was assigned to the University of New Mexico as a
full time student.

He reenlisted in the Navy

d.

Subsequently, an investigation was initiated to

determine the circumstances surrounding the theft of a University
of New Mexico parking pass by Petitioner.
officer (IO) noted that Petitioner had failed to comply with
parking regulations as evidenced by 20 citations, with fines

The investigating

The IO also noted
"booted".
totaling $200, and his car had been  
rightful owner of
that Petitioner had made no effort to find the
about it. He
the parking pass, and had lied when questioned
Naval Reserve
recommended that the commanding officer of the
for the offense.
Officer Training Corps (NROTC) unit impose NJP
The record shows that Petitioner received NJP on 13 October 1998.
The Uniform Code of Military Justice (UCMJ) charges and
specifications are as follows:

UCMJ Article 121:
property (the parking pass) of another Officer
Candidate with intent to temporarily deprive him of its
use.

Wrongfully obtained and withheld

UCMJ Article 133:
and a gentleman by lying to command members in an
attempt to explain his unlawful appropriation.

Used Conduct unbecoming an officer

The punishment imposed was an oral reprimand, forfeiture of $50
per month for two months and a suspended reduction in rate from
HM3 (E-4) to HN (E-3).

e.

On 29 December 1998, Petitioner was placed on six months

probation based on the recommendation of a performance review
board held on 17 December 1998.
lapse in character/officer qualities,
On 12
the terms of probation would result in disenrollment.
March 1999 the probation was vacated because of his failure to
change his duty status with the Department of Veterans Affairs,
which would have resulted in a monetary loss of educational
benefits.
Petitioner was terminated from the commissioning
program and was made available for orders.

He was warned that any further
or failure to comply with

f.

In the performance evaluation for the period 22 January
1998 to 31 January 1999,
Petitioner was assigned an adverse mark
of 1.0 in the category of military bearing/character, and the NJP
is mentioned in the comments section of the evaluation.
he was recommended for promotion and retention in the Navy. In
the next performance evaluation,
1999, he was again assigned a mark of 1.0 in military
bearing/character.
dropped from the Enlisted commissioning Program due to character
issue violations and was being made available for assignment. In
this evaluation, the promotion recommendation was "progressing",
and he was recommended for retention.

The comments section states that he was being

for the period ending 30 July

However,

 

_

g*

Attached to enclosure (1) is an advisory opinion from

the Head, Performance Evaluation Branch,
(NAVPERSCOM) . The advisory opinion notes that the marks and
comments in the performance evaluations were in accordance with

Navy Personnel  

Command

2

regulations, and Petitioner has not submitted any evidence to
show that the commanding officer abused his discretion.
the advisory opinion points out that the regulations do not allow
for a favorable promotion recommendation if any trait grade is
1.0.
reporting senior for correction.
recommends that both performance evaluations be removed from the
member's record, and that they be replaced with the corrected
evaluations when received.

Accordingly, the evaluations were being sent to the

NAVPERSCOM therefore,

However,

h.

The NAVPERSCOM advisory opinion incorrectly assumes that

This is incorrect since the second evaluation was

Petitioner received a promotable recommendation on both
evaluations.
not marked 
accordance with applicable directives,
recommendation of "progressing"
individual has already been deemed "promotable".

"promotablel' but only "progressing".

may not be made after an

this was incorrect since a

However, in

i.

In his application,

Petitioner states that he found the

parking pass in his box at the NROTC unit and made an error in
judgment when he began using the parking pass several weeks
later.
He also contends that he was told that the charge under Article
133, UCMJ would be dropped because he was not a commissioned
officer. He further states, in part, as follows:

However, he denies any intent to steal the parking pass.

. 

. I believe that had I been at any other command in

. 
the Navy, my actions would have caused me to receive an
oral reprimand, but not be charged with a crime that I
did not commit: one that would follow me throughout my
career and cause me many problems along the way.
believe the charges were extreme and unjust.
investigative procedures followed were molded to fit a
pre determined outcome.
The extremely severe and
unjust actions of the Command were not warranted in
this type of training environment, where mistakes are
allowed to be made, especially in judgment, as long as
the person realizes them and learns from them.

The

I

Attached to enclosure

(1) is a letter to the Board,

dated'; December 2000
University of New Mexico which states, in part,

from the Commanding Officer, NROTC Unit,

as follows:

. 

. Article 15 proceedings were conducted by my

. 
predecessor in command.
the charges imposed for violating UCMJ Article 133 were
dismissed due to his not being a commissioned officer
and therefore could not be held to those standards of
conduct has been verified by personal contact with . . . .
the officer who conducted the proceedings.

(Petitioner's) contention that

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k.

Attached to enclosure (1) is an additional statement

from Petitioner.
an excellent manner as an HM3,
psychology, and is progressing in a masters program.
desires to be an officer in the Navy.

He points out that he is continuing to serve in

has graduated with a degree in

He still

1.

UCMJ Article 133 applies only to an accused who is a

"commissioned officer, cadet or midshipman."
Petitioner was serving in an enlisted status as an HM3, at the
time of the offenses.

As previously noted

CONCLUSION:

In view of the language of UCMJ Article 133

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants partial
favorable action.
and the recommendation made by the commanding officer, the Board
concludes that the NJP entry in the service record should be
modified by deleting the charge under Article 133, UCMJ, conduct
unbecoming an officer and a gentleman.
believes that the investigation supports the charge under Article
121, UCMJ and particularly notes Petitioner's many parking
citations may have given him an incentive to use the parking
pass.
abuse his discretion when he imposed NJP for the Article 121,
UCMJ offense.

The Board concludes that the  

commanding  officer did not

However, the Board

The Board believes that the NJP and the subsequent incident which
resulted in the termination of his probation were sufficient to
support the 1.0 marks in military bearing/character and the
performance evaluations should not be removed from the record.
The Board notes the technical errors in the promotion
recommendation, but declines to remove the evaluations since the
corrected evaluations have not been submitted and there is no
guarantee that such evaluations will ever be filed.

Concerning the punishment imposed, the Board notes that since the
reduction in rate was suspended,
forfeitures of pay totaling $100.
that the punishment imposed was not too severe.

Therefore, the Board concludes

Petitioner only received

RECOMMENDATION:

That Petitioner's naval record be corrected by deleting from

a.
the NJP imposed on 17 December 1998,
133, UCMJ, conduct unbecoming an officer and a gentleman.

the charge under Article

b.

That no further relief be granted.

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That any material or entries inconsistent with or relating to

C .
the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.

d. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with
of Proceedings, for retention in a confidential file
for such purpose, with no cross reference being made
Petitioner's naval record.

this Report
maintained
a part of

It is certified that a quorum was present at the

Board's
4.
and that the foregoing is a true and
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

/J&Y

ROBERT D. ZSALMAN
Recorder

ALAN E. 
Acting Recorder

GOLDSMITH-

Pursuant to the delegation of authority set out in Section

5.
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
has been approved by the Board on
authority of reference (a),
behalf of the Secretary of the Navy.

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