DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD
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2 NAVY ANNE

S

WASHINGTON DC 20370-510

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CRS
Docket No: 6322-00
23 July 2001

From: Chairman, Board for Correction of Naval Records
To:
Subj:

Secretary of the Navy

CORD OF

(a) 10 U.S.C. 1552

Ref:
Encl: (1) Case Summary

(2) Subject's naval record

.

applied to this Board requesting, in

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Navy,
effect, that her naval record be corrected by removing the 23
February 2000 nonjudicial punishment (NJP) and promoting her to
IT3 (E-4).
2. The Board, consisting of Mr. Lippolis, Mr. Ivins, and Ms.
LeBlanc, reviewed Petitioner's allegations of error and injustice
on 11 July 2001 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. Petitioner's application to the Board was filed in a timely

manner.

c. Petitioner enlisted in the Navy on 2 June 1998 at age 19.

Upon completion of training,
(ARS-53).
The records indicate that until the incidents at
issue, she served well and had no disciplinary infractions.
was advanced in due course to ITSN (E-3) on 16 March 1999, and
subsequently was frocked to IT3.
rate on 16 June 2000.

She
She was to be advanced to that

she was assigned to USS GRAPPLE

d. Documentation in the record reflects that in October or

November 1999, Petitioner was counseled on her   failure 
a telephone number for the ship's recall bill.
2000, after she missed the movement of her ship, she was again
counseled on the need to provide recall information.
counseling entry, dated 25 January 2000,
January 2000 in which the command called the recall number
provided by Petitioner, but only reached a neighbor who was
unhelpful.
"have a recall
number for your immediate residence while living off base."
(There is no explanation in the record for the discrepancy in the
dates)
This entry also stated that she was directed to have a
telephone installed at her recall address by 18 February 2000.

Petitioner was advised of the need to 

cited an incident on 26

On 1 January

to provide

An unsigned

e. On 31 January 2000 a counseling entry (page 13) stated that
"orders* suspending her access to the radion
"get a
The entry was signed by Petitioner and

Petitioner was given  
room and to classified material.
"recommendationst*  section of this page‘ 13 were the words 
telephone for 
witnessed by LTJG (O-2) P.

As part of the

recall."

f. On 18 February 2000 Petitioner was placed on report for the
following violation of Article 92 of the Uniform Code of Military
Justice:

In that (Petitioner)... having knowledge of a lawful
order issued by a page 13 entry dated 31 January 2000 by
LTJG P, to wit:
Have a telephone recall, an order which
it was her duty to obey, did 
on or about 18 February 2000,
failing to have a recall number.

onboard USS GRAPPLE (ARS-53),
fail to obey the same by

Petitioner was also charged with failure to obey an order to
provide sufficient support for her dependents.

g. A memorandum for the record,

dated 22 February 2000, by ITC

(E-7) K stated that Petitioner had been directed to have a
telephone for recall purposes no later than 18 February 2000 and
that, as of 22 February 2000, the order had not been carried out.
In another memorandum, dated the same day, LTJG P stated that on
23 January 2000 he presented Petitioner with a page 13 that
"directed her to provide a valid recall (telephone number) by 18
February 
reach her on 20 February 2000,
he found that the recall number
that she had given him was not connected.
is no page 13 entry dated 23 January 2000 in the record, but only
the counseling entries of 1,
provided a handwritten letter from a representative of the
telephone company which stated that installation of her phone
should have been completed on 18 February 2000, but was not.

LTJG P also stated that when he attempted to
In this regard, there
Petitioner

25 and 31 January 2000.

2000....t1

h. Petitioner received NJP on 23 February 2000 for failure to

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obey the order in the 31 January 2000 page 13 entry to have a.
recall number.
and a reduction in rate from ITSN to 
The commanding
officer dismissed the charge of failure to support her dependent.

The punishment consisted of suspended forfeitures

ITSA (E-2).

i. On 29 February 2000 Petitioner appealed the NJP by stating
that she did everything required to obtain phone service and have
the phone connected before 18 February 2000.
after the 31 January 2000 counseling she tried to obtain a cell
phone, but that was found inadequate.
installation of a phone on 14 February 2000, the first
opportunity she had to do so since the ship deployed for two
weeks on 31 January 2000.

She stated that
She finally ordered the

j. On 27 April 2000 Petitioner's appeal was denied by

Commander, Combat Logistics Squadron TWO, who found that her
reduction in rate was not disproportionate.

k. In her application to the Board, Petitioner essentially

reiterates the contentions in her NJP appeal.

1. An advisory opinion from the Deputy Assistant Judge

Advocate General (Criminal Law) recommends that relief be denied.
The opinion states that the language pertaining to the need for a
recall number in the page 13 entry was **arguably not an order**
since it was in the **recommendation for corrective action**
section of the page 13.
that prior to 31 January 2000,
told, both verbally and in writing,
to get a telephone for
recall.
The opinion then concludes that the NJP should not be
removed simply because the specification references the 31
January 2000 page 13 rather than the earlier verbal and written
orders of ITC K and LTJG P.

However, the opinion goes on to note
Petitioner had been repeatedly

m. In order to be classed as an order a communication must
United States v. Glaze, 3 USCMA
16O(CMA

amount to a positive command.
168, 11 CMR 168 (1953); United States v. Warren, 13 MJ 
1982).
peremptorily, it must tell the individual what to do or not to
do.

United States v. McLaughlin, 14 MJ 908 (NMCMR, 1982).

Even though an order may be expressed courteously and not

be recommended for promotion by the

n. In order to be advanced in rate, an enlisted servicemember
must have passed the required advancement examination and, on the
date of advancement,
commanding officer.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
relief, specifically,
her record.

removal of the 23 February 2000 NJP from
In this regard, the Board believes that although

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This message was

Therefore, the Board is unimpressed with

This specific contention may well be true.

imposition of NJP was fundamentally just and equitable, it was
improperly imposed and must be removed.
In her NJP appeal and her application to the Board, Petitioner
essentially contends that after the counseling of 31 January
2000, she tried to get a telephone installed at her home by the
18 February 2000 deadline, but was unable to do so due, in part,
to GRAPPLE's deployment and the inefficiency of the telephone
company.
However,
Petitioner ignores the fact that since October or November of the
previous year, she had been on notice that she needed to provide
the command with a recall telephone number.
reiterated on several occasions by command representatives,
culminating in the 25 January 2000 entry in which she was
actually ordered to provide a recall telephone by the deadline
date.
Accordingly, even if events beyond her control occurred
after the 31 January 2000 counseling and precluded timely
installation of a phone, she should have attended to this matter
well before then.
Petitioner's argument and, absent any other considerations, would
deny Petitioner's application.
The Board nevertheless concludes that the NJP must be removed
This disciplinary action was imposed
from Petitioner's record.
for failure to obey a lawful order-- the page 13 entry of 31
However, after carefully examining the facts and
January 2000.
the applicable law, the Board is convinced that this entry did
not constitute an order.
the need for Petitioner to get a recall telephone is in that
portion of the entry entitled **recommendations.**
that a recommendation does not constitute a positive command, and
therefore is not an order.
That is especially true here since
the entry clearly reflects that she was given **orders** to stay
away from the  
Along these
lines, the Board notes that even the advisory opinion questions
whether Petitioner received an order to get a recall telephone on
31 January 2000.
The Board is also painfully aware of the prior
direction she received on this issue,
some of which probably did
constitute a positive command to get a recall telephone.
However, the Board cannot agree with the advisory opinion that
this direction overcomes the foregoing flaw in the NJP.
Accordingly, the Board reluctantly concludes that the
disciplinary action must be removed from Petitioner's record.
The Board tangentially notes that Petitioner received an
unsuspended reduction at the NJP,
and believes this was an unduly
harsh punishment given her prior good record.
However, the Board
declines to grant Petitioner's follow-on request--that the record
be corrected to show that she was advanced to IT3 in due course.
In this regard, the Board is aware that absent the NJP, the
ITSA.
record will show that she was not reduced from ITSN to 
Even though she was due to be advanced to IT3 on 16 June 2000,

In this regard, the language concerning

It seems clear

.radio room and classified material.

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she would not have been so advanced unless a recommendation for
advancement from her commanding officer was in effect at that
The Board believes that given her culpable failure to get
time.
a recall telephone in a timely manner, the commanding officer
would have withdrawn his recommendation for advancement even if
he had not imposed NJP.
In this regard, the Board wishes to
emphasize that its recommendation to remove Petitioner's NJP is
not based on a belief that she was innocent of any wrongdoing,
but only due to a legal insufficiency in the disciplinary action.
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 by removing all

This corrective

references to the NJP of 23 February 2000.
action should include but not necessarily be limited to removal
of any Court Memorandum (NAVPERS 601-7R) documenting that NJP.
The record should then reflect that Petitioner was never reduced
in rate to 
interruption in the rate of ITSN since her initial advancement to
that rate on 16 March 1999.

ITSA and has served continuously and without

b. That no further relief be granted.
C . That any material or entries inconsistent with or relating
to 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 a copy of
this Report of Proceedings,
for retention in a confidential file
maintained for such purpose,
with no cross reference being made a
part of 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

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

Secretar
Assistant 
(Manpower and Rese

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