DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

TRG
Docket No: 260-00
6 February 2001

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

RECORD  OF

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

(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record

From:
To:

Subj:

Ref:

Encl:

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

1.
former enlisted member of the United States Navy filed enclosure
(1) with this Board requesting, in effect,
reinstatement to RM2
(E-5) and compensation for the illegal and improper actions taken
against him.

The Board, consisting of Mr. Dunn, Ms. McCormick and Ms.

2.
Davies, reviewed Petitioner's allegations of error and injustice
on 23 January 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.
to Petitioner's allegations of error and injustice, finds as
follows:

The Board, having reviewed all the facts of record pertaining

a.

Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b.

Enclosure (1) was filed in a timely manner.

Petitioner reenlisted in the Navy on 4 July 1993 for

Gears in the rate of RM2 (E-5).

four 
In August 1995 Petitioner.
and another RM2 were placed on report and charged with disobeying
a regulation in that they failed to properly safeguard classified
material, resulting in the loss of two person integrity (TPI).
Petitioner appeared before the chief petty officer disciplinary
review board and admitted that he had made a mistake.
disciplinary board recommended nonjudicial punishment (NJP) which
included a reduction in rate to  

RM3 (E-4).

The

On 24 April 1997 Petitioner and the other individual,
RM2 C received NJP for the foregoing offense, which was charged

d.

as dereliction of duty instead of a failure to comply with the
applicable regulation.
a reduction in rate to RM3.
reach length of service limitations for E-48, the officer in
charge (OIC) informed them she would consider mitigating the
punishment at a later date if they became more involved in
conanand functions.
was denied.

They both received 14 days extra duty and
Since both petty officers would soon

Subsequently, Petitioner's appeal of the NJP

On 18 August 1997 Petitioner requested that the

He stated that he had requalified as a
puniskent be mitigated.
classified material user, performed the rest of his duties in an
excellent manner, completed college courses, and given to
charity.
division officer recommended as follows against mitigating
Petitioner's punishment:

However, in a memorandum dated 21 August 1997 the

Immediately following (NJP), (Petitioner) openly

Gestioned and criticized his chain  of command
regarding the fairness of his situation. . . .

I was informed by two Chief Petty Officers that

their conversations with (Petitioner) indicated he did
not accept responsibility for his actions and didn't
consider mishandling (classified material) a serious
matter.

You recommended at (NJP) that (Petitioner) and  

(C) make every effort to move ahead and overcome their
poor judgment. I recall specifically you told them
command involvement would be favorably considered.
While 
job, he also worked diligently on command collateral
jobs . . .
(Petitioner) on the other hand requested no
additional responsibilities or duties.

(C) went forth and worked hard on his primary

FU43 

RM3

f.

On 28 August 1997 Petitioner submitted an equal

opportunity (EO) complaint alleging that he was not reinstated
because he is a Muslim.
(O-5) C, JAGC.
follows:

The investigating officer found, in  

An investigation was conducted by a CDR

part,qas

Complaints of racial and religious discrimination at

(the command) have been ongoing for about 3 years.
They have been investigated several times, the last
being in May 1997.
be unfounded. However,
original) of discrimination continues to exist.
The
(previous investigator) has found no specific incident

The complaints were determined to

a perception  (emphasis in

2

of discrimination and he believes the OIC would not
hesitate to stop it if she was aware of a
discriminatory activity.
. . . . . Efforts have been made
to sensitize people to the issues, and RMC A, a Muslim
lay-leader . . . has visited several times to discuss and
educate people on Islam. . . . .

Concerning Petitioner's contention that his mitigation request
was treated differently than  
RM3 C the IO found, in part, as
follows:

On 13 August 1997, ETC (E-7) G personally assigned

C) to submit a request for mitigation.

(RM3 
have the request routed through the (leading petty
officer) or the (assistant leading petty officer).
endorsed it and hand carried it to . . . . the Division
Officer who also favorably endorsed it.
was not afforded (Petitioner), in fact no assistance
was given by ETC (G) to (Petitioner).
cautioned (RM3  
handling of his request. . . . .

C) not to talk to anyone about the

ETC 

(G)

This procedure

He did not

  He

The manner of handling  

(RM3 

C's) request to

(Petitioner's) has led to gossip, tension, and loss of
respect to  ETC G among some (emphasis in the original)
of the department.
that it is not what you know but who you know that
helps you, and that whether or not  
more important than work performance. A potential of
divisiveness exists as a result of perceived
unfairness. . . . .

(G) has created a perception

liked" is

"you are 

ETC 

. 

. 

. Overall the chain of command had a more positive
(RM3 C) in regard to rehabilitation and

. 
assessment of  
rehabilitative potential.

The exhortations to both  

. The decision to mitigate NJP punishment is

. 
discretionary with the officer imposing punishment.
Demonstrated rehabilitation and rehabilitative
potential are legitimate criteria for mitigating
punishment.
and contribute clearly fall within the realm of
accepted demonstrations of rehabilitation/future
potential.
such as race, gender, or religion as a discriminator.
. I am satisfied that bottom line (Petitioner) failed
. 
to exercise sufficient personnel initiative post-NJP to
do more than his job.

A commander may not however use criteria

In addition his memorandum in

PO's to work hard

I

3

support of his complaint tends to indicate that he does
not understand the severity of his offense.
defense to the severity of the offense is that his side
C's) fault that
of the safe was locked and it was  
(RM3 
(C) left his side open. This ignores his
responsibility as the watch supervisor to ensure the
safe was locked when (C) left and his responsibility as
a shipmate.
joint  (emphasis in the original) responsibility, that
either or both maintained TPI and electrical safety or
that both broke TPI.
By definition you can't have a
situation of one breaking TPI and the other not.

The responsibility to maintain TPI is a

His

In response to Petitioner's request  

ETC(SS) (S), the

g-

Fleet Equal Opportunity Assistant conducted another
investigation.

The chief found, in part, as follows:

he stated that

(G)
During my interview with ETC  
or/serve alcohol at
(Petitioner) didn't have to drink  
these events, but they were events that he had expected
(him) to be involved with.
these expectations to (Petitioner).
not indicate to ETC  
because of his religious beliefs.
(G) stated
that community involvement outside the command was a
personal issue, not commitment to the Navy.
stated that helping the detachment, division or a
shipmate is commitment.

(G) that he could not participate

ETC (G) did not express

(Petitioner) did

He also

Chief 

. 

. 

. (Petitioner) tried to avoid these types of events

. 
because of the presence of alcohol.

RMC (A) (the Muslim lay-leader) reflected to me that

(Petitioner) tries to comply strictly with his
religion.
RMC (A) explained to me that (Petitioner's)
avoidance of alcohol and events that promote the use of
alcohol is an acceptable course of action to adhere to
the practices of his religion.
prior to the denial of (Petitioner's) request for
reinstatement he had discussed options and actions that
(Petitioner) could follow to help his reinstatement
efforts.
recommendations.

(Petitioner) did not follow these

RMC (A) stated that

. . . .

. Commander 

(C's) original investigation findings

. 
indicated that ETC  
to Petty Officer  
for mitigation, but not to (Petitioner).
The
investigating officer's findings also contained

(G) provided preferential treatment
(C) in the submission of his request

RMl (M)

statements from ETC (G), (Petitioner), and  
pointing out that RMC (G) provided this assistance but
In my interview with ETC
attempted to keep it quiet.
(G), he denied keeping it quiet. He said that contrary
to the investigating officers findings, he did not
approach Petty Officer (C), but rather Petty Officer
(C) approached him.
division officer . . . . he said that he had talked to the
chief about prompting both individuals to submit their
requests.
In my interviews with (Petitioner), RM2 (C)
and 
.
. 
. 

RMl (M) they held to their original statements.

In my interview with the  

. 

. 

. 

. 

.

. In the denial of (Petitioner's) request the OIC used

. 
inputs from the  
division officer reported that his negative endorsement
was based on the inputs he received from the LCPO.
Inputs from the LPO (Two positive recommendations) were
not used in her decision. . . . . .

. division officer and LCPO.

The

. 

. 

. . My conclusions are:

Junior personnel perceive that participation in

He was the recipient of unequal treatment in the

(Petitioner's) religion was an unintentional factor
a.
in the denial of his request for mitigation of his mast
case.
b.
handling of his request.
C .
designated events indicates command involvement.
participation negatively impacts performance
evaluations.
d.
making a decision on (Petitioner's) request.
input was based partly on (Petitioner's) lack of
command involvement in command events.
e.
accurate assessment of (Petitioner's) suitability for
reinstatement.

ETC (G's) input was used as the sole input for

ETC (G) was not present long enough to make an

This

Non-

Based on my findings, I recommend that

(Petitioner's) mast be mitigated and that he be
reinstated to Petty Officer Second Class.

h.

In his endorsement, the Fleet Chaplain stated, in part,

as follows:

. The command functions initiated by the Commanding
. 
Officer were designed to enhance esprit de corps and
neither were intended to include alcohol nor promoted
its use.
The command involvement promulgated by (the)

5

Detachment in no way conflicts with the religious
beliefs or practices of the Islamic Faith.

. It was incumbent on (Petitioner) to make his

. 
religious adherence known to his chain of command which
he did not nor did he suggest any other way he could be
involved in building command morale.

I find no religious discrimination based on the

investigation carried out by ETC (S).

. It should be noted that strict observance of Islamic

. 
law within the military services is very difficult as
it would require a Muslim to refrain from using any
establishment that sold or carried alcoholic beverages
(e.g. most restaurants or the . . . . package store...).
If (Petitioner's) religious practice is in conflict
with his duties and expectations, his command should
seek an administrative separation in accordance with
Navy Regulations.

i.

In his endorsement, the Fleet Staff Judge Advocate

stated, in part, as follows:

(C's) initial
ETC(SS) 

. I have reviewed Commander  
report of  

. 
investigation the
this allegation of religious discrimination against
(Petitioner) by his chain of command  
. I concur with
Commander (C) and (the Fleet Chaplain's) determinations
that the command's decision not to mitigate
(Petitioner's) nonjudicial punishment was not based on
any impermissible basis. Thus, I do not find any
instance of religious discrimination on the part of
(Petitioner's) command.

(S's) review into

. 

. 

. To establish unlawful religious discrimination,

. 
there must be clear and convincing evidence that the
governmental entity . . . . knowingly and intentionally
unfairly treated the complainant (Petitioner) solely on
the basis of his religious affiliation.
the,
point, to prove religious discrimination, the
complainant must prove that there was no reasonable
distinction for the unfair treatment except for the
fact of his religious affiliation.
no evidence to support (Petitioner's) contentions.

There is absolutely

More to  

. It is clear from the investigation and report of the

. 
review, that the Officer in Charge based her decision
RM3 (C) had
. 
command by getting
gone out of his way to support the  

. on the fact that she perceived that  

. 

. 

. 

6

(Petitioner)

actively involved with command functions.
asserts that he did not participate in these command
functions for religious reasons.
Therefore, under his
rationale, by the OIC considering command participation
in her equation as to whether or not to mitigate his
NJP punishment she discriminated against him because of
his religion.
The problem with this rationale is that
the chain of command did not know (Petitioner's) reason
for not participating in these command functions.
(emphasis in the original) (Petitioner) had a duty to
bring this matter to his chain of command's attention.
He failed to do this.
Therefore, he did not give his
chain of command the chance to accommodate his
religious beliefs with the command functions.
As an
example, if (Petitioner) declined to participate in a
command function because alcohol was served, he could
have participated in the function by being the command
designated driver. . . . .

. I would agree that (Petitioner) did not receive the
. 
same assistance from his LCPO as RM2 (C) received from
the LCPO.
This might signal a leadership deficiency on
the part of ETC (G) and should be examined by his chain
of command.

. I find no evidence of religious discrimination in
. 
this case, and therefore do not concur with ETC  
S's
conclusion . . . that **(Petitioner's) religion was an
unintentional factor in the denial of  
mitigation of his mast  
not know why (Petitioner) declined to participate in
command functions, this was never a factor, either
intentional or unintentional, by the command, in
deciding his request for NJP mitigation.

Since the command did

case."

his,request  for

Courts-

Thus, (Petitioner) does not have a

. Finally, paragraph 6b of Part V, Manual for  

. 
Martial, United States (1995 ed.) gives the commanding
officer or officer in charge the discretion to mitigate
NJP punishment.
right to have his NJP punishment mitigated.
his OIC may in her discretion, now knowing all the
circumstances involved in his case, decide whether  
not she wishes to grant any mitigation in his case.
This should be solely her determination, and I disagree
with (ETC 
order the OIC to mitigate his NJP punishment or
mitigate his NJP on its own accord.

S's) recommendation that COMFAIRMED either

Therefore,

or.

j.

On 30 January 1998 the Commander, Fleet Air

7

Mediterranean found that the denial of Petitioner's mitigation
request by the OIC was proper and was not based on religious
discrimination or any other impermissible basis.
investigation was returned to the OIC for her complete review and
for any further action she might deem appropriate with respect to
Petitioner's mitigation request.

The

k.

Petitioner was denied reenlistment because he had

reached high year tenure (HYT) for a petty officer third class.
He was honorably discharged on 29 March 1998 with separation pay
On discharge he was assigned an  
in the amount of  
6 reenlistment code.
otherwise recommended for reenlistment but is denied further
service because of HYT.

RE-
This code is assigned when an individual is

$17,704.40.

1.

On 10 April 2000 the Director, Professional

Relationships Division, Navy Personnel Command provided an
advisory opinion to the Board concluding that the conclusion of
the Fleet commander was appropriate and religious discrimination
was not a factor in this case.

m.

In his rebuttal to the advisory opinion, Petitioner

continues to contend that the punishment was not mitigated
because of requirements that conflicted with his religious
beliefs and improper actions taken by a chief petty officer. He
states that he had been stationed at the command for over two
years at the time of the NJP, previous superiors and the entire
work station knew of his religious beliefs and, in effect, that
he did not realize that the chain of command was unaware of his
beliefs.

Subsequently, Petitioner's allegations were reviewed by

N& Inspector General (NIG).

the 
religious discrimination was not a factor in this case.
the NIG stated as follows in a letter to a Congressman.

The NIG concluded that

However,

Notwithstanding the foregoing, however, the facts of
the case also allude to a widely held perception that
(Petitioner's) treatment, if not technically
discriminatory, may have been disparate, particularly
with respect to the command's apparent support of
another Sailor who had received NJP for the same
Given this perceived disparity, we recommend
offense.
that (Petitioner) petition the Board for the Correction
of Naval Records (BCNR) for relief. He should include
all the documentation available to him and ask BCNR to
request and consider the  
investigation.

Navy's report of

0 .

The Board is aware that when a reduction in rate is set

8

aside or a punishment which imposed a reduction in rate is
mitigated, regulations require the restoration of the original
effective date and time in rate.

The Board initially finds that the NJP was proper and the
Concerning the subsequent actions,

CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
punishment was not too severe.
the Board believes that religious discrimination was not a factor
In this regard, if
in the denial of his request for mitigation.
Petitioner was being asked to do things which were contrary to his
religious beliefs, he should have made the command aware of the
In addition, the Board notes that
problem in no uncertain terms.
alcohol use is legal and it is impossible to avoid all contact with
alcohol.
events where alcohol is served,
area is required.
have served as the duty driver following an event is an example of
Finally, the Board notes that other factors,
such flexibility.
such as his refusal to take responsibility for his actions which
resulted in the NJP, his failure to volunteer for collateral
duties, and his failure to comply with the suggestions of the
Muslim lay-leader, could properly be used to differentiate
Petitioner's case from  
Board concludes that the OIC did not abuse her discretion in this
matter.

Although Petitioner was not required to participate in

The suggestion of the Fleet SJA that he could

some degree of flexibility in this

RM3 C, who was readvanced.

Therefore, the

However, the Board notes the conclusion in the investigations that
there was disparate treatment in the processing of the restoration
in rate requests, and agrees that even though there was no
religious discrimination there may well have been some disparate
In this regard, Petitioner apparently did not receive
treatment.
the same degree of assistance in preparing his mitigation request
as did 
Further, it does appear that he did make some
efforts to do more than was absolutely required in the normal
performance of his duties,
Petitioner's actions.
Board concludes that Petitioner's reduction in rate should be set
aside on 1 February 1998,
review by COMFAIRMED on 30 January 1998.
will show that he was not reduced in rate on 24 April  

and the OIC may not have been aware of
Weighing the equities of the situation, the

the day following completion of the

Accordingly, the record

RM3 C.

1997..

Finally, the Board notes that since the record will show that he
was never reduced to RM3, he should not have been assigned an RE-6
reenlistment code for failure to meet HYT requirements.
the Board further concludes that the record should be corrected to
show that he was assigned an RE-1 reenlistment code on 29 March
1998 vice the RE-6 reenlistment code now of record.

Therefore,

9

RECOMMENDATION:

That Petitioner's
a.
the reduction in rate
February 1998.

naval record be corrected to show that
imposed on 24 April 1997 was set aside on 1

That Petitioner's naval record be further corrected to
b.
that on 29 March 1998 he was assigned an RE-1 reenlistment
vice the RE-6 reenlistment code now of record.

show
code

C .

That no further relief be granted.

That any material or entries inconsistent with or relating to

d.
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.
e. That any material directed to be removed from Petitioner's
naval record be returned to the Board,
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.

together with this Report

It is certified that a quorum was present at the Board's

4.
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

ALAN E. GOLDSMITH  
Acting Recorder

’

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.

10