DEPARTMENTOFTHENAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

AEG
Docket No. 7091-99
19 July 2000

From:
To:
Subj:

Ref:
Encl:

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

VAL RECORD OF

(a) 10 U.S.C. 1552
(1) Case Summary
(2) Subject's Naval Record

He further

1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps, applied to this Board
requesting that his naval record be corrected by removing the
nonjudicial punishment (NJP) of 18 March 1998.
requests revocation of the 30 June 1999 general discharge and
reinstatement in the Marine Corps or, alternatively, retirement
under the provisions of the Temporary Early Retirement Authority
set forth in Public Law 102-484, as amended.
2. The Board, consisting of Messrs. Pfeiffer and Morgan and Ms.
Humberd, reviewed Petitioner's allegations of error and injustice
on 12 July 2000 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
Documentary material considered by
available evidence of record.
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 first enlisted in the Marine Corps on 26 May
For most of the next 17 years, he served in an excellent
_to

1981.
to outstanding manner, as shown by his fitness reports,
his promotion in due course  
unblemished disciplinary record,
staff sergeant and two awards of the Navy-Marine Corps
Petitioner's final reenlistment, for four
Achievement Medal.
Shortly thereafter,
years, occurred on 4 October 1996.
Petitioner reported for duty to Headquarters and Headquarters

Squadron (HQHQRON), Marine Corps Air Station (MCAS), Iwakuni,
Japan.
d.

In February 1998 allegations of sexual harassment were
As a result, an officer was appointed
and his report of 24 February

filed against Petitioner.
to conduct a preliminary inquiry,
1998 set forth the following findings:

. 

. 

. 

. 

.

AKAN (R's) breast. AKAN (R) then

Dee 97 and 31 Jan 98 in the evening following a

. that he could touch her breasts without touching

Between 1 
pre-inspection for field day in Bks (barracks) 313,
(Petitioner) while in the head area 
. offered PFC
. 
. 
(Private First Class; E-2) (P) a bet  
. that he could
. 
. 
touch her breasts without touching her shirt.
PFC (P) told (Petitioner) that he needed to stop, and she
departed his presence  
On or around the same date in Bldg. 240, (Petitioner)
offered to AKAN (aviation storekeeper airman; E-3) (R) a
bet 
her shirt.
(Petitioner) grabbed 
struck (Petitioner's) arm and departed his immediate
presence.
Sometime after (Petitioner) offered that 
he approached her concerning her fiancee, inquiring how
long they were going to be separated and offering to be
with her if she were lonely and to just let her know. 
(R) believed this to be an offer for sex 
Both PFC (P) and 
(and) actions were unwanted.
Both PFC (P) and 
AKAN (R) were unaware of each other's
circumstances and had personally decided not to report
their circumstances involving (Petitioner).
conversation at (a) forum on 13 Feb 98, they realized that
they had had very similar circumstances.
that they needed to report these incidents to prevent
reoccurence  
(Petitioner) was seen by MAJ (Major; O-4) (W) around 1720
(Petitioner) described the events
(on 13 February 1998).
The accounting of that conversation given in
to MAJ (W).
(MAJ 
W's) statements corroborates the statements of both
PFC (P) and  
AKAN (R)  

AKAN (R) believed (Petitioner's) comments

The (sic) felt

During

. 

. 

.

. 

. 

.

11bet11 to AKAN (R),

AKAN

. 

. 

.

In one of her statements during the inquiry,  
AKAN R said that.
when Petitioner allegedly propositioned her, he 
safe because neither one of us could tell anyone because he's
In her statement to the inquiry officer (IO), PFC P
married."

"said it would be

2

said,
life (as a father/husband) or career (as a Marine)"

IlAKAN (R) and I neither one wanted to destroy Petitioner's

e.

On 16 March 1998, as a result of the 

IO's report, NJP
At that time, he was
ttviolation  of Articles 92x2 and 134x2 of

action was initiated against Petitioner.
advised that the commanding officer (CO) was considering the
imposition of NJP for
the UCMJ (Uniform Code of Military 
laid under UCMJ Article 92 alleged violations of a general
regulation, and it appears that those charged under Article 134
alleged indecent assault and solicitation to commit adultery.

Justice).l'

The specifications

f.

On 18 March 1998, the CO of HQHQRON held an NJP.hearing
However,

after considering all of the evidence,
in Petitioner's case and,
dismissed the specifications alleged under Article 134.
the CO found that he had committed the following violations of
UCMJ Article 92:

At HQHQRON, MCAS Iwakuni, Japan did, violate a lawful
regulation, to wit: SECNAVINST (Secretary of the Navy
Instruction) 
5300.26B 
female Marine's breast.
At HQHQRON, MCAS Iwakuni, Japan did, violate a lawful
para. 4(b) by
regulation, to wit: SECNAVINST 
touching a female Sailor's breasts.

para. 4(b) by attempting to touch a

5300.26B 

At NJP, Petitioner signed the Unit Punishment Book which set
forth these allegations and the CO imposed punishment of a letter
of reprimand.

53.

On 5 April 1998 Petitioner appealed the NJP to the CO,

MCAS Iwakuni, essentially contending that imposition of
punishment was unjust given his fine record of service, the
dismissal of the assault and adultery charges, and since
'I(n)eit victim wanted anything other than the Informal
Resolution System to resolve this 
contention,

In support of this
AKAN R submitted a statement that reads as follows:

matter."

(1)t was not my intention for this situation to go before
It was originally agreed upon by myself and PFC
the CO.
. (the) EO (equal opportunity) advisor that an
(P) and  
apology from (Petitioner) and an informal counsel (sic) on
his behavior would be acceptable."

. 

. 

Also submitted with Petitioner's appeal were numerous character
reference letters attesting to his prior excellent performance
and exemplary behavior.

h.

The CO, HQHQRON endorsed Petitioner's appeal on 14 April

1998 and recommended it be denied since the misconduct was
ttunbecoming of a 
reviewed by the station judge advocate, who also recommended that

. leader of Marines."

The appeal was then

. 

. 

3

it be denied and commented as follows in his memorandum of 23
April 1998:

. 

. 

. establishes 

. Based on my review, I do not consider the punishment
. 
to be unjust or disproportionate to the offenses.
Specifically, I am convinced that the preliminary inquiry
. 
acts against the victims which constitute sexual harassment
as defined by (SECNAVINST 
not require that sexual harassment complaints be handled by
informal resolution-- regardless of the victims' alleged
desires.
not lessen the gravity of the (Petitioner's) actions..

Dismissing the assault and adultery charges did

. that (Petitioner) committed the

The SECNAVINST does

5300.26B).

. 

. 

i.

On 29 April 1998 the CO of the MCAS denied Petitioner's

appeal, finding that the NJP was
"just and proportionate to the
An entry was then made to reflect the imposition of
offense.tt
ttOffenses and 
NJP on the 
Petitioner's service record.
However, that entry is incomplete
in that it shows the NJP was appealed but does not indicate that
the appeal was denied.

PunishmentsIt page (page 12) of

j.

ttparticularly  desire

The reporting senior made favorable comments

Petitioner received a fitness report for the period 1
January to 1 May 1998 in which he received an overall rating of
ttexcellent.tt
concerning Petitioner's performance of duty and indicated that he
would
It to have Petitioner serve with him in
wartime.
However, the report also mentioned the NJP in several
places.
The reporting senior summed up his feelings by noting
ttunfortunate incident for an
that the disciplinary action was an
otherwise excellent Marine," and further said that 
tt(a)lthough
his judgment is now suspect,
service for the Corps, if 
stating that the NJP was
while performing a 'practical joke,' has tarnished this Marine's
career 
his duties to the Marine 

he will still provide valuable
The reviewer concurred,
II( unfortunate lapse in judgment

. recommend retention of a Marine who ably performs

allowed.tt

Corps.tt

. 

. 

k.

On 11 June 1998 the CO of HQHQRON initiated

administrative separation action against Petitioner by reason of
misconduct due to commission of a serious offense, as evidenced
by the NJP of 18 March 1998.
In his letter of that date, the CO
advised Petitioner that if discharged, characterization could be
under other than honorable conditions, but also stated 
Subsequently,
recommending that you be retained on active 
Petitioner elected to present his case to an administrative
Accordingly, the CO appointed an ADB
discharge board (ADB).
consisting of a MAJ, a chief warrant officer 3 (CW03) and a
master sergeant (MSGT; E-8).

duty."

"1 am

At the ADB, which met to consider Petitioner's case on

1.
28 July 1998, AKAN R testified for Petitioner, in part, as
follows:

4

I had a good working

We never talked about this until it was

I was stationed there for over eight months so I probably
knew (Petitioner) for six months.
I did not work directly with him
relationship with him.
He came to me with
but I did have daily contact with him.
a bet, and after he touched me I moved to the other side of
the counter.
I viewed him touching me
brought up to the 
as a real bad joke.
officer 
but I didn't want it to get to this level.
this way today.
did.
with.
before or after.
relationship and I would like to work with (Petitioner) in
the future, again.

I did talk to the equal opportunity
I wanted this to be addressed,
I still feel
(Petitioner) did apologize for what he
I accepted the apology and thought of it as done
Nothing negative ever happened with (Petitioner)

This did not affect my working

CO's attention.

. about this.

. 

. 

AKAN R also testified as follows concerning the incident with
Petitioner:

I didn't respond to his bet because

I was in
There was nobody around
NC0
He made the proposition; I

The incident took place in my work shop area.
uniform and he was in uniform.
when this took place.
that wasn't a statement I would expect from a staff 
(noncommissioned officer).
didn't say anything, then he grabbed me, then I struck his
arm.
because I found it offensive.
I recall a conversation I had with (Petitioner) about my
fiancee, he asked me if I was feeling safe and that it can
I interpreted
get lonely at night, so I can live with him.
it as a sexual connotation.

It is because of what he did that I struck him,

Petitioner also testified under oath as follows

concerning the incidents for which he received NJP:

m.

. 

. 

. 

. 

AKAN  (R) and I

I believe the practical jokes that I played on PFC (P) and
AKAN (R) occurred in the same week 
We had been joking around with
worked late one evening.
. The way the incident came about
one another all day  
. 
was that on the evening we were working late we had just
finished betting on a football game and then I proposed
Her response was that there wasn't any way
another bet.
that I could win that bet.
After the
willing to bet me and her response was 
joke she gave me a joking slap to my left shoulder and we
continued talking. I didn't receive any negative response
She looked surprised when
from her in regards to the joke.
I would not have acted on the bet if 
I acted on the bet.
_
she had not accepted it.
apologized to her if she indicated that she was offended by
the joke, in which case she didn't.
The situation with PFC (P) came
relationship the next day.

I would have also immediately

I had asked her if she was

We resumed out work

"OK."

5

. 

. 

. That's when

I don't remember how the joke was

I told her that it was a one dollar bet.

about on a Thursday night that I went to inspect some of
the Marine's rooms that previously failed  
I ran into PFC (P).
brought up, but when mentioned, PFC (P) asked how it was
I told
played.
her that I would bet her one dollar that I could touch her
breast without touching her shirt to which she replied that
I told her that she was right and that
it was impossible.
I have never touched AKAN (R) in any manner, prior
was it.
My reason for touching her on the night
to the incident.
I had no romantic or sexual
in question is stupidity.
interests in AKAN (R) when this incident occurred 
. I
have never propositioned AKAN (R).
. I felt that she felt
regards to her recent marriage  
uncomfortable with this and I apologized to her right away.
I have a tendency to sometimes perhaps cross the line when
joking around about what is or 
isn't appropriate, however,
if it has been indicated to me as being inappropriate I
make an apology in front of all persons who were present
for the joke.
I cannot offer any excuses for my behavior.
At the time I didn't think of it as being inappropriate or
sexual in nature.

. 
I joked with her in

. 

. 

. 

In addition to the testimony of Petitioner and AKAN R, numerous
other individuals attested to Petitioner's prior good behavior
Evidence was also submitted to the
and excellent performance.
ADB that documented his excellent performance during his career
in the Marine Corps.

n.

After considering all of the evidence in Petitioner's
case, the ADB found that Petitioner had committed misconduct as
alleged, but recommended his retention in the Marine Corps.

0 .

ttoutstanding.tt

Petitioner received a fitness report for the period 2
The reporting senior made very favorable

May to 30 September 1998 in which he received an overall rating
of
potentialtt
comments, commented on Petitioner's
and gave him the "highest recommendation for promotion."
However, of the nine individuals rated outstanding, Petitioner
was ranked eighth.

ttimmense growth 

.

For some reason

the president of the ADB did not
proceedi;gs to the discharge authority until 5
forwa:d the ADB 
The CO of HQHQRON favorably endorsed the
November 1998.
recommendation of the ADB on 9 December 1998, commenting that
"the interests of justice are served with the 
.I ’ The case was then reviewed on 7 January
recommendation 
1999 by the staff judge advocate (SJA) to the discharge
authority, the commanding general (CG) of the local Marine Corps
base.
In his memorandum of that date, the SJA set forth
Petitioner's record of service and noted that the CG could either
approve the recommendation of the ADB and retain Petitioner or
recommend to the Secretary of the Navy (SECNAV) that Petitioner
be discharged notwithstanding that recommendation.

The SJA then

(ADBls)

. 

. 

6

recommended as follows that the CG take the latter course of
action:

I do not concur.

The (ADB) found that the

The (ADB) and squadron commander recommended retention in
this case.
preponderance of the evidence supports the allegation of
misconduct due to commission of a serious offense for
The evidence clearly indicates that
sexual harassment.
(Petitioner) offered bets to a junior female Marine and
Sailor that he could touch their breast without touching
their shirt.
He subsequently touched the female Sailor's
Additionally,
breast.
AKAN (R) indicates that (Petitioner) propositioned her for
sex based on the fact that they were both married and could
not tell.
I recommend that you forward the proceedings to
(SECNAV) recommending (Petitioner) be separated with a
general (under honorable conditions) discharge.

The Marine declined his bet offer.

On 11 January 1999 the CG submitted a memorandum
Enclosures to the endorsement were the 

q-
endorsement to SECNAV, through the Commandant of the Marine Corps
SJA's memorandum
(CMC).
In the endorsement, the CG stated that
and the ADB proceedings.
repeated the factual part of
he had reviewed the ADB proceedings,
his 

SJA's memorandum, and opined as follows:

. 

. (Petitioner's) actions and defense that he was just

. 
playing a joke is contrary to every 
His commendable service record has
sexual harassment.
spared him separation with a discharge under other than
However, it should not spare him
honorable conditions.
from being separated from the Marine Corps.
recommend that he be separated with a general 
discharge.
His continued presence is considered
detrimental to the morale of this command.

ttlesson learned" about

Accordingly, I

. 

. 

.

.

When the discharge package arrived at Headquarters

fact."

it was routed to 

CMC's SJA for comments,
That

Marin: Corps (HQMC)
which were provided'by memorandum of 22 February 1999.
memorandum concluded that the proceedings were  
and 
The SJA also noted that Petitioner had submitted a
letter for consideration in which he alleged that since the ADB
recommended retention and SECNAVINST 
incidents of sexual harassment should be addressed at the lowest
possible level, it was improper to forward his case for SECNAV
ttspecioustt
action.
and
superseded, and stated that the successor directive required
resolution at
then concluded as follows:

However, the SJA dismissed this contention as 
5300.26B had been
level.lt

tterroneous,tt noted that SECNAVINST  
"the lowest appropriate 

5300.26B stated that

ttsufficient  in law

The memorandum

Because the (ADB) found a factual basis for the proposed
separation, (CMC) may:

a. Forward the proceedings to (SECNAV) recommending

separation with an honorable or a general 
characterization of service (with or without
suspension) by reason of misconduct/commission of a
serious offense.

. 

. 

.

b. Direct that (Petitioner) be retained.

The record reflects that this memorandum was drafted by a chief
warrant officer and signed by a judge advocate under 
directionIt  authority.

*Iby

.

On 22 April 1999 the Director, Personnel Management
DivisTon (Code MM) , 
to the Assistant Secretary for Manpower and Reserve Affairs
The memorandum notes that it was prepared by 
(ASN/M&RA).
Goodwine, 
CGls letter of 11 January 1999 
comments of 

"Mr.
The memorandum lists two attachments--the

The memorandum reads as follows:

acting for CMC, submitted a memorandum

ttw/end,tt and the 22 February 1999

CMC's SJA.

MMSR-3."

HQMC,

The (CG)  

(Petitioner) received (NJP) for sexual harassment. After
being notified of his command's intent to recommend his
(Petitioner) elected to present
administrative separation,
The (ADB) found that the
his case before an (ADB).
allegation of sexual harassment was supported by a
preponderance of the evidence yet recommended his
retention.
recommendation and recommends (Petitioner's) discharge with
. characterization of service, Attachment 1.
a general  
Coordination was made with the (SJA to CMC), Attachment 2.
Per SECNAVINST 
(Petitioner's) discharge for misconduct due to the
commission of a serious offense with a general  
characterization of service  

1910.4B, recommend approval of

. disagreed with the  

(ADBls)

. 

. 

. 

. 

. 

. 

. 

.

. 

.

SECNAVINST 
administrative separations in the Navy and Marine Corps.

1910.4B sets forth policy and procedures for enlisted

t.

On 4 May 1999, acting for SECNAV,

ASN/M&RA approved the
recommendation of Code MM for Petitioner's separation.
Accordingly, on 30 June 1999 he received a general discharge by
At that time, he had about 18 years and 1
reason of misconduct.
month of active service.

In an attachment to Petitioner's application, his

counsel makes the following contentions of error:

U .

Although Petitioner received NJP for violating SECNAVINST 
5300.26B between 1 December 1997 and 31 January 1998, he
could not, as a matter of law, have violated this
regulation during that time since it had been canceled on
17 October 1997 by the issuance of SECNAVINST 

5300.26C; and

_

8

$ 1176(a) prohibits the administrative separation

the latter directive had not been promulgated in his unit
at the time of the alleged offenses.
The service record entry reflecting the NJP fails to
reflect that Petitioner appealed the NJP and that the
appeal was properly decided by the CG.
10 U.S.C. 
of an enlisted servicemember with more than 18 years of
active service.
Neither the CG nor CMC considered all of the factors set
forth in SECNAVINST 
1910.4B which are to be considered in
determining whether an individual should be separated or
retained; but instead focused on the circumstances of
Petitioner's offense to the exclusion of all other factors.
Code MM violated SECNAVINST 
ASN/M&RA only the comments of the SJA to CMC of 22 February
1999 and the 
not advise her that she could direct a suspended
separation.
Neither the CG nor 
potential for rehabilitation,
1910.4B.
It was unfair to direct Petitioner's separation given the
more favorable treatment accorded an officer who committed
more serious misconduct.
It was unfair for 
when Petitioner's ADB recommended retention, given the
requirement in SECNAVINST 
1910.4B that the characterization
of discharge be no less favorable than that recommended by
the ADB.

CGls endorsement of 11 January 1999; and did

ASN/MCRA to direct a general discharge

ASN/M&RA considered Petitioner's

as required by SECNAVINST

1910.4B by forwarding to

V .

The Head of the Military Law Branch, Judge Advocate

"is incorrect . . . to the extent that

.I ’ However, JAM3 notes that the entry is

In the opinion, JAM3 states that the service record

(JAM3), has submitted an advisory opinion, dated
Division, HQMC 
10 May 2000, which recommends that Petitioner's application be
denied.
entry documenting the NJP 
it named the predecessor order of the SECNAVINST actually
violated 
"substantially correct in form and suggests no irregularity in
the proceeding itself," and characterizes the discrepancies as 
Turning to the administrative separation
scrivener's  
action, JAM3 states that 
Petitioner's case since that statute requires retention on active
duty unless the individual is separated under anther provision of
law, and Petitioner was separated under 10 U.S.C. 
Concerning 
states that Petitioner 
procedures in SECNAVINST  

counselIs other contentions of procedural error, JAM3

"was properly separated pursuant to the

S 1176(a) is inapplicable to

.I’ JAM3 also opines that it

1910.4B 

S 1169.

. 

. 

error."

Ita

. 

. 

9

would be inappropriate to compare Petitioner's case with other
case."
cases

"given the unique circumstances presented by each 

W .

Counsel responded to the JAM3 advisory opinion by letter
In his response, counsel correctly points out
5300.26B is cited not just in the service record

dated 8 June 2000.
that SECNAVINST 
entry documenting the NJP, but in all of the NJP documentation
created during the processing of that action, and Petitioner
Accordingly,
received NJP for violating this instruction.
counsel takes issue with the conclusion of JAM3 that this
Counsel then
discrepancy is no more than a 
essentially reiterates his contention that Petitioner cannot be
punished for violating a regulation that was canceled before he
committed the acts allegedly constituting a violation of that
directive.
essentially reiterates his prior contentions of error. He
speculates that the violation of 
because none of the officials involved in processing Petitioner's
case were advised that he would have 18 years of service by the
Counsel further contends that comparisons
time he was separated.
with other cases are proper and appropriate and alleges that JAM3
concludes to the contrary because it
acceptable reason for the disparate treatment of a more serious
offender."

Concerning the administrative separation, counsel
S 1176(a) may have occurred

ttcannot  provide a cogent,

scrivener's error.

X .

5300.26C  of 17 October 1997.

In preparing Petitioner's case-for presentation to the
Board, a staff member contacted the Head 
'df the Navy's Directives
Control Office concerning the publication and distribution of
She advised that in
SECNAVINST 
accordance with policy announced about a month earlier, this
directive was not printed but instead, on 3 November 1997, it was
submitted to the appropriate office for placement on a CD-ROM.
These discs were sent to Navy commands, but not Marine commands,
in late January or early February.
internet  shortly before the date the CD-ROM was sent to
on the 
the commands.
A message of 10 December 1997 informed Marine
Corps commands of this policy change, and stated that SECNAV
directives would be available on the internet.
record (MFR) reflecting the foregoing was prepared on 7 June
2000.
essentially stated that his contention concerning the NJP was
unchanged.

Counsel responded to the MFR by letter of 17 June 2000 and

The directive also was placed

A memorandum for

Y*

Goodwine was advised of counsel's contention to the effect

An MFR of 28 June 2000 documents a conversation between
a member of the Board's staff and Mr. Kurt Goodwine, the Head of
the Enlisted Separations Unit of HQMC (MMSR-3) and the individual
who prepared the Code MM memorandum of 22 April 1999 to 
ASN/M&RA.
Mr.
that the only documentation provided to 
ASN/M&RA concerning
Petitioner's case was his memorandum, the comments of the 
CMC, and the 
according to the Code MM memorandum, Attachment 1 was the 
letter
notation was incorrect and should have stated 

ttw/end,tt meaning with endorsement.

CG's endorsement. Mr. 

Goodwine  stated that

ltw/encls.,lt meaning

SJA. to
CG's

He said that this

10

This notation would have been correct since one

with enclosures.
of the enclosures to the 
CG's endorsement was the ADB
proceedings, and it is the policy of his office to forward the
Counsel responded to this MFR by
entire case to 
alleging that it contradicted information in the official
records, and requesting that the Board not consider the MFR
without an opportunity to cross-examine Mr. Goodwine.

ASN/M&RA.

2.

SECNAVINST 

5300.26B of 6 January 1993 set forth the Navy

The directive

stated that no individual in the

Department's policy on sexual harassment.
prohibited sexual harassment,
department shall commit sexual harassment as that term is defined
in the regulation, and provided that a violation of 
The term
prohibition made the offender subject to UCMJ action.
Itsexual 
harassmentIt was defined, in pertinent part, as unwelcome
sexual advances and other physical conduct of a sexual nature
when such conduct interferes with an individual's performance or
5300.26C, dated 17
creates an offensive environment.
October 1997, canceled the earlier regulation but made virtually
no changes to the foregoing substantive provisions.

SECNAVINST 

that-

Paragraph 16 of Part IV to the  Manual for Courts-Martial

ttproperly 

Itin effect."

Tolkach,  14 M.J. 239 (CMA 

(MCM)aztates  that in order to be found guilty of violation of or
failure to obey a certain lawful general order or regulation, the
Paragraph 16 goes on to
regulation at issue must be 
explain that although it need not be shown that the accused knew
of the order or regulation and a lack of knowledge is not a
In the case
defense, the directive must be 
of United States v. 
1982), the Court of
Military Appeals noted that an individual is presumed to be aware
Itsome form of proper publication is
of general regulations, but 
necessary before such knowledge is presumed or there will be a
The court
violation of constitutional due  
went on to conclude that publication occurs when a regulation is
made @@available for reference,
action
"is sufficient to effect presumptive notice  
It Id.  at
In setting aside the accused's conviction, the court also
244.
noted that prior to publication of the directive at issue, the
conduct it prohibited had not been subject to criminal penalties.
Id.

It by the accused because such

process.tt Id.  at 241.

published.lt

. 

. 

. 

bb. Paragraph 4a of Part IV to the MCM states that an

accused facing NJP is entitled to receive a statement describing
the alleged offense and the UCMJ article alleged to have been
violated.
Case law indicates that NJP specifications will be
deemed sufficient if they protect the accused against double
punishment and advise him of the allegation against which he must
defend.
United States v. Eberhardt, 13  
Additionally, the military courts have held that a flawed
1982).
court-martial specification,
appeal, is  viewed with more tolerance than one challenged at
trial.

challenged for the first time on
M.J. 208, 209 (CMA 1986).

United States v. Watkins, 21 

M.J. 772, 774 (ACMR

11

cc. Paragraph 7a of Part V to the MCM states that an

The Manual of the Judge Advocate General 

individual who receives NJP and believes the punishment was
unjust or disproportionate may appeal to 
"the next superior
authority.tt
states that if the officer who imposed NJP is in 
command, and there is no direction to the contrary from the
general court-martial convening authority (GCMCA), any appeal
should be made to 
operational chain of command to the officer who imposed 

"the officer who is next superior in the

(JAGMAN)

CMC's chain of

(NJP)."

dd. 10 U.S.C. 

follows:

S 1176(a) states, in pertinent part, as

or whose term of enlistment

A regular enlisted member who is selected to be
involuntarily separated,
expires and who is denied reenlistment, and who on the date
on which the member is to be discharged is within two years
. Fleet
of qualifying for  
Marine Corps Reserve  
duty until the member is qualified for transfer 
unless the member is sooner retired or discharged under any
other provision of law.

., shall be retained on active
. 
.

. transfer to the

. 

. 

. 

. 

. 

. 

. 

If an individual is separated for misconduct after an

ee. Paragraph K of Part 1 of Enclosure (2) to SECNAVINST
1910.4B states that an individual may be processed by reason of
misconduct due to commission of a serious. offense if the specific
circumstances of the offense warrant separation and the MCM
authorizes a punitive discharge for the same or a closely related
offense.
ADB, characterization of service should be under other than
honorable conditions, unless a general discharge is warranted.
an honorable discharge is not
Absent very unusual circumstances,
Paragraph A2 of Part 2 of Enclosure (2) to the
authorized.
directive sets forth a number of factors that may be considered
on the issue of whether an individual should be retained or
separated.
circumstances forming the basis for separation; the effect of
retention on good order, discipline and morale; the likelihood
that the individual will be disruptive or undesirable in the
future; the individual's ability to perform duties; the
individual's rehabilitative potential; and the individual's
However, this paragraph also states that
entire military record.
rehabilitative potential must be considered by the ADB and the
separation authority, and even if separation is warranted despite
such potential, consideration should be given to suspension of
the separation.

These factors include the seriousness of the

ff. Paragraph F5 of Part 4 of Enclosure (2) of SECNAVINST
19190.4B requires the ADB convening authority, in this case the
CO of the HQHQRON, to forward his recommendation along with the
ADB proceedings, findings and recommendations, to the separation
authority, the CG.
paragraph 
authorized the CG to approve that recommendation, but precluded

C2b of Part 6 to Enclosure (2) of the directive

Since the ADB recommended retention,

12

him from directing separation.
Itsubmit the 
authorized him to
discharge, notwithstanding the action of the ADB.
in accordance with Rule 
(2) 
Petitioner's separation,
honorable or general discharge.

I SECNAV became the separation authority.

At that point,
Id of paragraph A of Part 6 to Enclosure
In directing
ASN/M&RA was limited to either an

case" to SECNAV recommending

However, that paragraph also

gg. The military appellate courts are not required to engage
in sentence comparison with other cases unless sentence
appropriateness can only be determined by reference to a closely
related case in which there was a highly disparate sentence. A
Itclosely related" case is one in which co-actors were involved in
a common crime, individuals were involved in a common or parallel
scheme, or some other direct nexus exists between the individuals
Additionally, even if there
whose sentences are to be compared.
is a greatly disparate sentence in a closely related case, the
sentence at issue may be deemed proper if there is a rational
basis for the disparity.
(1999).

United States v. Lacy, 50  

M.J. 286, 288

However,

hh. Although 10 U.S.C. 

S 6330 states that an individual may
only be transferred to the Fleet Marine Corps Reserve (FMCR)
after 20 years of active military service, section 4403(b)(2) of
provides SECNAV with Temporary
Public Law 102-484, as amended,
through Fiscal Year 2001, to
Early Retirement Authority (TERA),
so transfer servicemembers with more than 15 years of active
the Marine Corps has elected not to implement
service.
TERA.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
In this regard, the Board rejects counsel's contentions
relief.
of error, but believes that Petitioner's unsuspended
administrative separation was overly harsh given the
circumstances surrounding the offenses and his lengthy period of
excellent service.
The Board begins its analysis of Petitioner's case by examining
the propriety of the 18 March 1998 NJP, specifically, whether he
was properly charged with a violation of SECNAVINST 
5300.26B.
Counsel alleges and JAM3 appears to assume that it was improper
to cite this directive because Petitioner's offenses occurred
during the time frame of 1 December 1997 to 31 January 1998, and
since SECNAVINST 
predecessor.
was properly charged with violating this regulation and counsel's
contention to the contrary is without merit.
Paragraph 16 of Part IV to the MCM states that in order for an
individual to be guilty of violating a general regulation, the
directive must be 

5300.26C of 17 October 1997 canceled its

and believes that Petitioner

The MCM and United States v.

The Board disagrees,

'Iin effect."

13

Since SECNAVINST 

Tolkach,

5300.26B  was

also state that a regulation is not in effect

In Petitioner's case, it is

Because Petitioner's offenses occurred no  

5300.26C did not occur until late
the Board concludes that in all

5300.26B was properly cited as the

5300.26C, but also that no directive was in effect
The

Tolkach, supra,
until it is properly published.
5300.26C  is dated 17 October 1997,
clear that although SECNAVINST 
it was not distributed to Marine commands until late January or
early February of 1998, when it was placed on the internet.
The
Board believes that only then did the new directive go into
effect because only then was it published; until that time the
regulation was not available for reference by servicemembers and
they did not have presumptive notice of its existence.
5300.26B was canceled only by the
at 244.
issuance of SECNAVINST 
5300.26C, the Board believes that the
former directive remained in effect until publication of the
later.than 31
latter.
January 1998 and perhaps as early as 1 December 1997, and since
publication of SECNAVINST 
January at the earliest,
likelihood, SECNAVINST 
regulation violated by Petitioner.
Counsel appears to contend not only that SECNAVINST 
without force and effect as of 17 October 1997, the date of
SECNAVINST 
prohibiting sexual harassment between that date and on or about 1
February 1997, when the latter directive was published.
Clearly, SECNAV never intended that issuance of
Board disagrees.
SECNAVINST 
that both directives prohibited sexual harassment in general and
Along these lines, the Board
Petitioner's actions in particular.
notes that the conviction in  Tolkach  was reversed, in part,
because prior to the issuance of the regulation at issue, the
behavior engaged in by the accused was not subject to criminal
sanctions.
The Board believes it is possible,
that Petitioner might have committed the offenses after
SECNAVINST 
5300.26C was published.
have been cited as the governing directive at NJP and not
Even if this is the case, the Board still
5300.26B.
SECNAVINST 
concludes that the NJP should not be removed from Petitioner's
In this regard, Petitioner apparently received notice
record.
that he was accused of violating UCMJ Article 92 by touching PFC
P's breast and attempting the same action with 
notice substantially complied with the applicable provisions of
the MCM, especially since the substantive provisions of the two
directives are nearly the same.
documentation clearly shows that he was aware of the allegations
against him, admitted that they were essentially true, and was
able to provide his version of the facts and circumstances and
offer extenuation and mitigation.
specification should not receive the same level of scrutiny when
it is raised for the first time in an application to the Board as
it might if challenged at the NJP hearing or on appeal.

5300.26C would result in such a gap, given the fact

although extremely unlikely,

If so, this regulation should

Such is not the case with Petitioner.

AKAN R.

This

Additionally, the NJP

Further, a defective NJP

14

The Board agrees with JAM3

JAGMAN state that such

S 1176(a)

law.@*

S 

SECNAVINST 

1910.4B implements 

as prescribed by the service

Accordingly, it was appropriate for the CO

essentially concurring with the
The last sentence of the statute states that

18-year safety zone is inapplicable to a servicemember
1169(l)

"under any other provision of  

S 1169 by providing
Accordingly, Petitioner was discharged under
S 1176(a) did

The Board concurs with JAM3 that the entry documenting the NJP
should be removed from the record since it does not reflect the
denial of Petitioner's appeal.
because the evidence of record clearly shows that Petitioner's
In a
appeal was considered and denied by proper authority.
related matter, the Board notes counsel's assertion that the
appeal authority in Petitioner's case was the CG, the GCMCA.
However, relevant provisions of the 
authority rests with the operational commander of the CO who
imposed punishment.
of the MCAS to decide Petitioner's appeal and not the CG.
Turning to the administrative separation, the Board first
considered but rejected counsel's contention that 
precluded Petitioner's discharge,
comments of JAM3.
its 
discharged
provides for discharge of a regular enlisted member prior to the
expiration of his term of service,
secretary.
policy and guidance on enlisted administrative separations in the
Navy Department.
another provision of law,
not apply to him.
Additionally, the legislative history of 
S 1176(a) indicates that
this provision of law was intended to
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
No. 102-966, 102
U.S.C.C.A.N. 1636, 1800.
officers in 10 U.S.C. 
the involuntary discharge of officers who twice fail to be
promoted unless they have 18 years of service, in which case they
However,
are retained until they attain retirement eligibility.
18-year safety zone is inapplicable
both statutes state that the 
if an officer is
provision of 
separation of a regular officer for cause, as provided for in
Chapter 60 of Title 10, is not precluded by  
Petitioner's discharge for cause under 
was,not affected by 
implementing directives 
The Board also found no merit in counsel's contention that the CG
and CMC violated SECNAVINST 
the enumerated factors on the issue of whether to retain or
separate an individual.
states that the listed factors  may  be considered on that issue
depending on the circumstances of the particular case.
Accordingly, even if counsel is correct in his contention that
the CG and CMC considered the circumstances of Petitioner's
misconduct to the exclusion of all other factors, no error was

H.Conf. Rep.
eligibility purposes."
2nd Sess. 709, reprinted in 1992
Such protection is afforded for regular

ttsooner retired or discharged under another

Accordingly, just as administrative

SS 631 or 632,
S 1169 and the
S 1176(a).

1910.4B by failing to weigh all of

Paragraph 

A2d of Part 2 to Enclosure (2)

Eztirement
Cong., 

law."

and the safety zone in 

ttprovide  the same tenure

SS 631 and 632, both of which provide for

15

"the 

The

his office

ASN/M&RA with the memorandum.

However,

ASN/M&RA.

Paragraph 

C2b of Part 6 of Enclosure

1910.4B requires that the separation authority

1910.4B be forwarded to SECNAV,
CO's recommendation.

and one of the prerequisites for
is that the circumstances of the

committed since consideration of any one factor is not mandatory.
This is especially so since Petitioner was processed for
commission of a serious offense,
such processing, as set forth in paragraph Kla(3) of Part I to
enclosure (2) of the regulation,
offense itself warrant separation.
The Board considered but rejected counsel's contentions of error
pertaining to the Code MM memorandum of 22 April 1999.
CGls letter and
language of the memorandum suggests that only the 
the comments of the SJA to CMC, dated 11 January and 22 February
1999, were forwarded to 
the Board believes that Mr. Goodwine, who prepared that
memorandum, has correctly advised the Board that
followed standard practice and forwarded the entire ADB
proceedings to 
(2) to SECNAVINST 
case" along with a recommendation that SECNAV direct
forward 
separation despite the contrary recommendation of an ADB.
ttcasett is not defined, it appears the directive
Although the term
intends that all the material set forth in paragraph F5 of Part 4
to Enclosure (2) of SECNAVINST 
specifically, the ADB proceedings and the 
The Board believes this was done in Petitioner's case.
Counsel is correct that the Code MM memorandum failed to advise
ASN/M&RA of her option to direct a suspended separation.
However, the text of that memorandum referenced the comments of
the SJA to CMC, which specifically set forth that option.
ASN/M&RA was aware that one
Accordingly, the Board believes that 
of her options was to direct separation, but suspend its
execution for a specified period.
The Board also found no merit in counsel's contention that there
was noncompliance with SECNAVINST 
nor 
ASN/M&RA considered Petitioner's rehabilitative potential, as
required by paragraph 
directive.
it should be considered by the separation authority.
case, the GCMCA, the CG, functioned as separation authority until
he forwarded the case to SECNAV recommending discharge, whereupon
ASN/MCRA assumed that role.
both officials were required to consider whether Petitioner
possessed rehabilitative potential and, if so, whether his
separation should be suspended.
presumption that government officials perform their duties
properly and assumes that both the CG and 
issue appropriate consideration prior to their respective
decisions to recommend and direct separation.
contention on the fact that no documentation submitted to 
or 
that 
and only considered the Code MM memorandum, the comments of the
SJA to CMC, and the 

Counsel bases his
the_CG
ASN/M&RA was not advised of her option to suspend separation

A2b of Part 2 of Enclosure (2) to the

This paragraph states that if such potential exists,
In this

ASN/M&RA mentions rehabilitative potential, and his belief

CGls letter.

However, there is no

The Board relies on the

ASN/M&RA gave this

1910.4B since neither the CG

Accordingly, it would appear that

16

ASN/M&RA could direct a suspended

United States, supra,

Since there was no closely related case to

It is also

which included the favorable

apppropriateness  of the separation decision can only be

ASN/M&RA.
ASN/M&RA made her decision
and not just the adverse

requirement to discuss rehabilitative potential in any
documentation forwarded to the CG or 
important to once again assert that 
based on the entire record,
recommendations of the ADB and the CO,
comments set forth in the memoranda of the CG, the SJA to CMC and
Additionally, as previously noted, the comments of the
Code MM.
SJA specifically noted that 
separation.
The Board also considered but rejected counsel's contention that
Petitioner's separation was unfair because more favorable
treatment was accorded to an officer who committed misconduct
In reaching this conclusion,
that was arguably more aggravated.
the Board does not fully concur with JAM3 that such comparisons
are never appropriate, but does believe that the court's analysis
should be followed in reviewing
in Lacy v.
a decision to administratively separate an individual.
Accordingly, there should be no reference to other cases unless
the 
determined by examining a closely related case with a greatly
disparate outcome.
Petitioner's, no such comparisons are appropriate.
The Board also found no merit in counsel's contention that given
the 
ADBls recommendation for retention, Petitioner's service was
unfairly characterized with a general and not an honorable
discharge.
inevitably would have recommended the latter characterization of
service had it not recommended retention and bypassed the issue
of characterization.
Petitioner had committed misconduct by reason of commission of a
serious offense.
warranted, a recommendation for discharge under other than
honorable conditions would have been appropriate, and an
honorable discharge is not even authorized in most cases.
Accordingly, the Board is not convinced that had Petitioner's ADB
recommended separation,
discharge.
direct a general discharge in a case such as 
Nevertheless, the Board believes it was unfair to direct an
unsuspended separation in Petitioner's case. In reaching this
conclusion, the Board does not in any way condone Petitioner's
behavior, and wishes to emphasize its belief that disciplinary
However,
action was not only proper but entirely appropriate.
ASN/M&RA failed to
the Board believes that the CG,
give sufficient weight to several factors in Petitioner's favor.
Petitioner had given 18 years of
At the time of his separation,
service to his country in a number of demanding assignments.
NJP at issue was his only disciplinary action during this entire
period of service.
As evidenced by his fine fitness reports and
personal decorations, he performed his duties in an excellent

it would have recommended an honorable

ASNN/M&RA was specifically authorized to

The Board rejects counsel's premise that the ADB

Along these lines,

the ADB found that

If the ADB had believed that separation was

Further,

PetitionerIs.

Code MM and 

17

The

The ADB that heard Petitioner's case was

Further, this record of performance continued after he

Additionally, it appears that if left to their own
Clearly, neither victim believed that administrative

manner.
received NJP.
It is also important to the Board that neither victim, PFC P or
AKAN R, believed that Petitioner's actions were particularly
serious.
They both declined to report Petitioner's misconduct
when it occurred and waited for a period of weeks, bringing his
actions to the command's attention only after meeting at a forum
and discovering that Petitioner had behaved inappropriately to
both of them.
devices, both women would have settled for an apology from
Petitioner.
to.state
separation was warranted.
Further, when
that she would be willing to work for him again.
Petitioner was confronted with the allegations against him, he
Such an
admitted his guilt and apologized to PFC P and AKAN R.
admission and expression of contrition are always important steps
towards rehabilitation.
The Board also gives considerable weight to the recommendations
for retention of the ADB and Petitioner's superiors, especially
the CO of HQHQRON.
composed of two experienced officers and a senior noncommissioned
Clearly, all of these individuals believed in upholding
officer.
Marine Corps standards, but also believed that separation was not
warranted.
officer who is primarily responsible for the status of discipline
and morale in his unit, believed that Petitioner could continue
to make a contribution to the unit and the Marine Corps, and
should be retained.
Taking all of these factors into consideration, the Board
strongly believes that had Petitioner been retained or if the
he would have served the two years
discharge had been suspended,
necessary to qualify for retirement without incident.
Accordingly, the Board concludes that the discharge in this case
constituted overkill, and relief is warranted.
Turning to the specific relief to be granted, the Board does not
believe that reinstatement would be in the best interest of
In this regard, the Board
either Petitioner or the Marine Corps.
is aware that as a SSGT, Petitioner would have to transfer to the
FMCR once he attained 20 years of service.
service was granted up to the current date, that would mean that
Petitioner would be brought back on active duty for less than a
year, thus disrupting his life and giving the Marine Corps his
The Board believes
services for only a brief period of time.
that the fairest resolution to this case would be to substitute a
In this
TERA retirement for the discharge of 30 June 1999.
regard, the Board recognizes that the Marine Corps has not
However, with
elected to utilize TERA as a force reduction tool.
Petitioner is clearly eligible for
his 18 years of service,
transfer to the FMCR in accordance with the amended version of

Additionally, the CO,

another experienced Marine

AKAN R even went so far as 

If constructive

_

18

Therefore, SECNAV may legally approve such

Public Law 102-484.
action as an exception to policy, and the Board so recommends.
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 to show that
he was not discharged on 30 June 1999 but was released from
active duty on that date and was transferred to the Fleet Marine
under the provisions of the
Corps Reserve on 1 July 1999,
Temporary Early Retirement Authority set forth in section
4403(b)(2) of Public Law 102-484, as amended.

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
for retention in a confidential file
this Report of Proceedings,
with no cross reference being made a
maintained for such purpose,
part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

and that the foregoing is a true and

, ROBERT D. ZSALMAN
Recorder
5. The foregoing action of
and action.

ALAN E. GOLDSMITH
Acting Recorder

the Board is submitted for your review

Reviewed and
BECRAFT
CAROLYN 
Assistant 
(Manpower and Reserve Affairs)

Secretar

19