DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

TRG
Docket No:
15 May 2002

3310-01

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

(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, a

1.
former enlisted member of the Navy filed an application with this
Board requesting that his record be corrected by removing the
nonjudicial punishment (NJP) and related documentation from his
record, and by setting aside his discharge and reinstating him on
active duty.

The Board, consisting of Mr. Agresti, Mr. Harrison and Ms.

2.
Hare, reviewed Petitioner's allegations of error and injustice on
14 May 2002 and, pursuant to its regulations, determined that the
corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

Documentary material considered by

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 initially enlisted in the Navy on 19 May 1986
He reenlisted

and served in an excellent manner for many years.
on 8 March 1996 for six years as a Fire Controlman First Class
(FCl; E-6).
S TRUMAN (CVN 75).

On 26 February 1999 he reported aboard the USS HARRY

d.

On 1 August 2000 Petitioner received NJP for indecent

assault and violation of a lawful general order.
imposed was a reduction in rate from  
days restriction and extra duty.
that Petitioner assaulted a female FC3 J, while they were
performing maintenance on a gun mount by rubbing her buttocks and

FCl to FC2 (E-5), and 45
Specifically it was alleged

The punishment

shoulders, and caressing her breast.
Petitioner contended that no indecent assault Sailor never told
him to stop, but during the NJP she stated that he was touching
Further she did not report the incident,
her against her will.
Petitioner also asserted
but only confided in another Sailor.
that since this incident was consensual the punishment
unjust.

In his appeal of the NJP,

was

e.

In his endorsement on Petitioner's appeal the

officer stated, in part, as follows:

commanding

. 

. 

. I am convinced that the incident occurred as

(Petitioner) when interviewed by
He corroborated many
At the Captain's Mast,

. 
alleged by FC3 (J).
NCIS, admitted to the conduct.
details of FC3 J's allegations.
(he) originally pled not guilty, however, he stated
that he had touched FC3 J's buttocks and breast without
permission.
elements of the offense and testimony of FC3 J, (he)
said he was guilty of indecent assault.
(He) also
admitted that he was guilty of fraternization with FC3
J.
This was clearly an
occurred in the work center.
unduly familiar relationship between a senior and a
subordinate.

He was (her) immediate supervisor and this incident

After further discussion about the

. 

. (His) assertion that the conduct was permissible
. 
because it occurred between two consenting adults is
both incredible and ignorant of the fraternization
policy.
where this supervisor preyed on an unsuspecting and
unwilling junior.
that FC3 J was a willing participant nor would this
fact matter for the charge of fraternization.

The evidence presented portrayed a situation

I do not believe (his) implication

. 

. Given the deleterious nature of this offense on the
. 
good order and discipline of this command nothing short
of the maximum punishment seemed warranted.
however, forego awarding any forfeitures for the
benefits of (his) wife and children. The punishment was
not unjust given the aggregious (sic) circumstances
surrounding the offenses.

I did,

Carrier Group TWO denied
On 15 August 2000, the Commander,
the NJP appeal, finding that the evidence was sufficient to
show that Petitioner had committed an indecent assault.
Subsequently, the commanding officer set aside the charge of
violating a lawful general order,
appropriate for the remaining charge of indecent assault.
Petitioner also submitted a subsequent appeal in which he

but found the punishment

2

alleged that contrary to the applicable provision in the
he had not been permitted to
Manual for Courts-Martial,
examine the evidence against him.

f.

On 17 August 2001 Petitioner was notified of

An administrative discharge board  

separation processing due to his commission of a serious
(ADB) convened
offense.
on 15 November 2000.
During the ADB, Petitioner's counsel
requested a continuance because FC3 J was unable to testify.
Page 2 of the ADB transcript states as follows concerning
this matter:

. 

.

. 

FC3 

The recorder responded that

(J) was admitted to Portsmouth Psychiatry

. 
Ward 14 November 2000.
both sides had a chance to interview FC3
(J) and that
the government would provide a sworn statement from FC3
(J) and statement from NCIS. The recorder also stated
that (Petitioner) had pled guilty and was found guilty
at Non-Judicial Punishment and that FC3  
(J) may never
be available to testify as per statement made by
treating physicians at Portsmouth Naval Hospital.

 

rrnol' 

J's statements were exhibits at the

In addition, Petitioner's civilian counsel testified

Both Petitioner's and FC3  
ADB.
concerning his prior interview with FC3 J and said that she told
him that she had been molested as a child and had continuing
issues resulting from this,
of
about FC3 J having been an exotic dancer, she was very
flirtatious, and she was considered untrustworthy.
the ADB unanimously concluded that Petitioner had committed
misconduct due to commission of a serious offense.
ADB recommended a general discharge and that the separation be
suspended for 12 months.

and couldn't communicate her wishes
Several enlisted men testified that there were rumors

.

However, the

Nevertheless,

g .

Petitioner's detailed defense counsel submitted a letter

He believed that

of deficiencies concerning the ADB.
Petitioner's rights were violated when   FC3 J was not made
available to testify and be cross-examined because the entire
case rested on the issue of whether the touching was consensual.
Subsequently, the commanding officer recommended an unsuspended
general discharge.
After some initial confusion concerning the
appropriate discharge authority, the case was forwarded to the
Navy Personnel Command,
which directed an unsuspended general
discharge by reason of misconduct.
on 6 April 2001 with an RE-4 reenlistment code.
had completed 14 years,

Petitioner was so discharged
At that time he
10 months and 18 days of active service.

h.

In an attachment to his application, Petitioner makes a

number of contentions of error.

He reiterates his assertion that

3

he was  denied the right to examine the evidence against him and
alleges that the evidence against him was
state of 
included in enclosure (1).

flawed given the mental
Petitioner's application wand all attachments are

FC3J.

i.

Petitioner's application was forwarded to the Commanding

Officer, USS HARRY S TRUMAN (CVN 75) for his input.
Petitioner's contentions of error in detail in a five page
response of 25 June 2001 and concludes that none of them had
merit.
officer, stated, in part, as follows:

Concerning FC3 J's mental capacity the commanding

He addressed

. 

. . 

. admitted to touching the victim  

. The mental capacity of the accuser in this case did

. 
not become an issue in the Non-Judicial proceedings.
(Petitioner) 
"on
her butt and breast."
He was then asked if the victim
asked for him to touch her or gave him permission to do
so, to which he responded that she did not. (He)
subsequently pled guilty to the indecent assault.
victim's mental capacity greatly diminished after the
incident occurred, and because (he) admitted to the
offense, the victim's mental capacity was not
considered as a matter relating to (his) guilt or
innocence.
board, to call into question the victim's mental state
during the incident in question because she was
unavailable to testify.
not persuaded.
personal and psychological issues it did not excuse
The victim's testimony at NJP and the
(his) actions.
statements to the Naval Criminal Investigative Service
Agent were credible and therefore provided a reliable
statement of the facts of the case.

(He) attempted during his administrative

Although the victim has a history of

The Administrative Board was

The

. 

. 

. Petitioner states,

W y accuser (The government's
. 
only witness) was self-admitted to the Portsmouth Naval
Hospital on 14 November 2000 to avoid being questioned
by my lawyers at the admin separation hearing and was
The
discharged days after the Board adjourned .  
victim's admission to Naval Hospital Portsmouth was not
to avoid questioning; her mental capacity diminished
after the incident and she was admitted only after the
medical professionals determined she should be
admitted. 
and testified before me.
regarding the incident to be credible.
therefore, given the right to be confronted with the
witness against him and his rights under the Sixth
Amendment were not violated.
. . . . The government did
not object to the introduction of any statement made by

. The victim was present at Captain's Mast

I found her statement

(He) was,

..'I

. . 

4

the victim to (his) attorney;

. 

. 

. 

.

j.

Petitioner submitted a rebuttal to the commanding

officer's input stating, in part, as follows:

. 

. FC3 (J) lied to enlist in the Navy, lied about the

X01 about being an exotic dancer and a

. 
events between us being against her will, lied to the
X0 at 
prostitute, and lied to the CO at mast.
TRUMAN) command did nothing to change the mast
conviction due to lack of credibility of their only
The command also had the option of setting
witness.
aside the charge of indecent assault and letting the
fraternization charge stand, but the charge of
fraternization does not require an admin board . . . .

The (USS

Both the commanding officer's input and Petitioner rebuttal are
attached to enclosure (1).

CONCLUSION:

Concerning the NJP, the Board believes that

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants partial
favorable action.
based on FC3 J's statement and Petitioner's admission, the
evidence at the NJP was sufficient to support the commanding
officer's conclusion that an indecent assault had occurred.
Therefore, the Board concludes that there was no abuse of
discretion in this matter and the NJP should not be removed from
the record.
The Board also substantially concurs with the input
of the commanding officer pertaining to the NJP in the letter of
25 June 2001

In addition, the Board substantially

Concerning the ADB, the Board believes that the NJP was
sufficient to support processing for discharge due to commission
of a serious offense.
concurs with the commanding officer in his letter that
Petitioner's rights were not violated and, therefore, the ADB
properly found misconduct occurred.
circumstances, Petitioner could not continue as a supervisor,
especially as a supervisor
Therefore, the commanding officer's decision not to recommend
suspension of the discharge cannot be considered an abuse of
discretion since Petitioner was in a position of leadership and
The Board concludes
should have been setting a better example.
that Petitioner was properly discharged and reinstatement in the
Navy is not warranted.
However, the Board weighed his many years of excellent service
against the isolated nature of the offense and concludes that an

of female enlisted personnel.

It is clear that given the

5

honorable characterization of service is more appropriate rather
than the general discharge now of record.

RECOMMENDATION:

That Petitioner's naval record be corrected to show that

a.
on 6 April 2001 he was issued an honorable discharge by reason of
misconduct vice the general discharge now of record.

That the remainder of Petitioner's requests for corrective

b.
action be denied.

That this Report of Proceedings be filed in Petitioner's

C .
naval record.

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.

ROBERT D. ZSALMAN
Recorder

4

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.

LFt?&?;e

Executive Director

6