DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

TRG
Docket No: 3872-01
15 August 2002

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

RECORD  

0

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

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

From:
To:

Subj:

Ref:

Encl:

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

1.
enlisted member of the Navy,
requesting that his record be corrected by removing the
nonjudicial punishment imposed on 4 November 1999, and by
promoting him to chief petty officer (AOC; E-7).

 
filed an application with this Board

.

The Board, consisting of Messrs. Harrison, Pfeiffer and

2.
Bishop, reviewed Petitioner's allegations of error and injustice
on 31 July 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
regulations within the Department
Petitioner's application

b.

under existing law and
of the Navy.
was filed in a timely manner.

C .

Petitioner reenlisted in

the Navy for three years on 15

At that time he had completed more than 12 years
On 15 December 1997 he reported aboard the USS

October 1997.
of active duty.
JOHN C. STENNIS (CVN 74).
petty officer and was frocked to the rate of AOC on 16 September
1999, thus authorizing him to wear the uniform and perform the
duties of a chief petty officer.
confirm his promotion date.
AOC's selected in 1999, which means he would be in the last 25%
to be advanced from the 1999 selection list.

However, he was ranked 77 of 102

He was subsequently selected for chief

The Board has not been able to

d.

On 4 November 1999 Petitioner received nonjudicial

punishment for breach of the peace and assault with a deadly
weapon, in violation of Articles 116 and 128 of the Uniform Code
of Military Justice.

The specifications read as follows:

Charge I . . . . on or about 5 October 1999, cause a
breach of the peace by engaging in a loud verbal
argument and pointing and unloaded firearm at EMFN
Anthony E. (A), USN.

Charge II . . . . on or about 5 October 1999 assault EMFN
Anthony E. (A), USN, by pointing at him a dangerous
weapon, to wit: an unloaded firearm.

-

The punishment imposed included 30 days extra duty and a
reduction in rate from his permanent rate of  
5) 
administrative discharge.
the NJP hearing that includes the statements of the witnesses is
attached to enclosure (1).

In addition, it was directed that he be processed for an

A portion of he verbatim transcript of

A01 (E-6) to  

A02 

(E-

e.

Petitioner submitted an appeal of the NJP on 15 November

1999 contending that the punishment was unjustly imposed. He
stated, in part, as follows:

. 

. 

. 

. 

. 

. I was devastated by the punishment I

. . . .

I was

The way the individual was talking on the phone

. . . . I made a bad judgment by trying to solve a
I drove over to

received at Captain's Mast on 4 November 1999.
accused and punished for an act I did not commit.
(the situation) escalated over a phone call that I
made.
I thought it was a joke at first, I thought it was
someone that knew my voice and was playing on the
phone.
problem in a calm face to face manner.
the address . . . . . when I approached EMFA (A), which I
did not know he was the individual on the phone, he
threatened me with a beer bottle . . . . I was given an
awkward looking stick by my acquaintance, which he
found in the parking lot.
going to be hard to reason  
of the situation by discontinuing (sic) to argue with
him.
for causing a disturbance and departed.
. . . . The next
day, during working hours, it was brought to my
attention that I was being wrongfully accused of arming
myself with a firearm. . . . .
completely. . . . .
The day the ship pulled in the NCIS
agent searched my vehicle in the parking lot and then

I apologized to the two ladies that were present

I realized that (A) was

I cooperated with NCIS

So I gained control

ii%.

2

proceeded with two NCIS agents to my apartment for a
search that resulted in negative findings.
agent also conducted a criminal background check, which
also resulted in negative findings.
a polygraph.
situation of being wrongfully accused because I had
never been in any trouble.
results were inconclusive.
have been resolved at a lower level due to the
following facts:

The NCIS agent told me the
. . . . This incident could

I was in turmoil about the whole

The NCIS

I was administered

The type of firearm was never found.
The police were never called.
There was no physical contact.
All five witnesses had been drinking.

This is a very disappointing event in my naval

career that I find very hard to deal with. . . . . I have
dedicated my career to helping every sailor that I can.
A five-minute incident over a misunderstanding should
not have ended with the severe and unjust punishment I
received on 4 November 1999.
frocked chief and proudly wearing my chief uniform to
an E-5, . . . . and I was removed from the ship fifty
minutes after I came 
out of Captain's Mast . . . . .
punishment has placed me in a financial hardship.
I purchased my chief uniforms I donated my E-6 and
below uniforms to Sailors throughout the ship. . . . .

I was reduced from a

This
When

A copy of the entire NJP appeal is attached to enclosure (1).

f.

The commanding officer's endorsement on Petitioner's NJP
appeal recommended that the appeal be denied and stated, in part,
as follows:

. 

. 

. 

. On 5 October 1999,  

AO2(AW/SW) (Petitioner)
(then a frocked Chief Petty Officer) called the house
of a shipmate, EM3 (B).
answered the phone.
a verbal argument over the phone, which ended when ENFN
(A) gave (Petitioner) the address to EM3 (B's) house.

(Petitioner) and ENFN (A) got into

Another shipmate EMFN (A),

. 

. 

. (Petitioner) then drove with a friend,

'rip', to EM3 (B's) house.

identified only as  
Once he
arrived, he confronted EMFN (A) in the parking lot just
outside.
After arguing for a period time, (Petitioner)
backed away from the argument and then returned
brandishing what has been identified as a  

TEC-DC9, an

3

assault weapon.

. 

. 

. After this weapon was brandished, the parties
Of the five witnesses who saw the weapon,

dispersed.
none of them informed the police, although they
informed the command the next day.

. 

. At mast, I heard from four eyewitnesses, each of

. 
whom knew the accused and had been friendly with him in
the past.
Each of these witnesses stated that they saw
a gun in the hand of (Petitioner).
Additionally a
fifth witness, a Marine Lance Corporal who had been
just recently introduced to one of the witnesses and
didn't know any of the parties involved, picked
(Petitioner) out of a photo lineup and clearly stated,
in a sworn statement, that he saw a gun he identified
as a 

TEC-DC9.

. 

. All of the testimony I heard at mast matched the

. 
written statements given by the witnesses almost a
month earlier as part of the thorough NCIS
investigation completed in the case.
testimony given by (Petitioner) matched almost
perfectly except on the point of whether he held a gun
or a stick.

Additionally, the

. 

. I heard testimony from eight former or current

. 
members of (Petitioner's) Chain of Command, as well as
the testimony of four character witnesses he requested.
Each of these made extremely positive comments about
his performance as a Sailor as well as his unlimited
potential as a Chief Petty Officer.

By a preponderance of the evidence I found that

(Petitioner) knowingly committed each of the charged
violations as modified.
charges made reference to a "loaded firearm."
there was no evidence that the gun was loaded, I
removed each reference to the firearm being loaded.
This changed the Assault charge to a "Simple Assault
with an unloaded firearm."

Originally, each of the two

Because

. 

. (Petitioner) is correct in his claim of superior

. 
service to the Navy throughout his career.
That does
not, however, change the fact that he willfully
violated the UCMJ by committing serious crimes against
shipmates.

I cannot allow any Sailor, let alone one

4

wearing Khaki of a Chief Petty Officer, to assault
others with a weapon.
appropriate, proportional punishment. . . . . . .

I therefore, awarded him an

g.

On 13 December 1999, the NJP appeal was denied by the

Commander, Carrier Group Seven.
in part, as follows:

It states in the denial letter,

. 

. 

. You contend your punishment was unjust.

In your
. 
appeal, you admit to using poor judgment by driving to
EM3 B's house and confronting EMFN A.
however, that you were punished for an act you did not
commit, and you produced an unsigned, unsworn letter
from your friend "Rip", to corroborate your story. The
burden of proof at NJP is a preponderance of the
evidence.
your behavior on 5 October 1999  
argued loudly with EMFN A and waved a large gun at him.

- each of whom witnessed
- testified that you

Five individuals

You claim,

Copies of the endorsement and final action on the NJP appeal
are attached to enclosure (1).

h.

Petitioner was processed for an administrative discharge

An administrative

Nevertheless the commanding officer

(ADB) met on 20 December 1999, and unanimously

as directed by the commanding officer.
discharge board  
found that he had not committed misconduct.
retained in the Navy.
refused to set aside the NJP.
misconduct, a transcript of the ADB hearing was not prepared.
However, his counsel during the ADB submitted an affidavit
setting forth the reasons why he believed the witnesses were not
credible and the accusations made against Petitioner were false.
Counsel presents an analysis of each of the statements made
against Petitioner and concludes that Petitioner did not have a
gun during the altercation.
Concerning EMFN A's statement and
testimony, he states as follows:

Because of the finding of no

Consequently he was

After reading EMFN A's statement and transcript of his
testimony, interviewing him and witnessing his
testimony at the  
could not give consistent detailed statements.
was cross-examined, by myself as well as the Captain,
he gave inconsistent and evasive answers.
to be fabricating his story.

(ADB) it was clear to me that EMFN A

He appeared

When he

The counsel concludes as follows:

5

All of the witnesses were friends.

There are some points about all of the witnesses in
general that indicate that they were fabricating their
stories.
All of
the witnesses talked to each other before making
statements.
None of the witnesses reported the
incident until days later.
All of the witnesses gave
inconsistent details when they recounted their stories
at various times.
witnesses) said they saw a gun neither called the
police, even though they were looking out of the
apartment window with the telephone right next to them.

Despite the fact that (two of the

A copy of counsel's affidavit is also attached to enclosure (1).

i.

Since the NJP and the ADB,

continues to serve in an excellent manner.
states he is doing an outstanding job and supports his request
for corrective action.

His current command

Petitioner has reenlisted and

j.

In his application, Petitioner essentially reiterates
He admits to going to the apartment and

his version of events.
engaging in a verbal altercation with EMFN A, but continues to
assert that he did not have a gun.
He states that his friend
handed him a stick to defend himself because EMFN A was
intoxicated and holding a beer bottle in a threatening manner.
He has submitted numerous character references attesting to his
good conduct and excellent performance of duty.
In addition,
there are submissions from senior enlisted personnel contending
that the NJP was unfair.
from a retired master chief who contends that there were four
NJP's involving black chief petty officer's, but white chiefs
were not taken to NJP.
enclosure (1).

All the statements are attached to

One of these is an unsigned submission

CONCLUSION:

The Board notes the conflicting finding of the

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
commanding officer at the NJP and that of the ADB.
transcript of the ADB is not available, the Board believes that
the affidavit of the defense counsel accurately indicates that
the ADB found the witnesses lacking in credibility.
to be undisputed that EMFN A continued to be disrespectful to
Petitioner even after he identified himself.
have been an error of judgment to confront EMFN A, the Board does
not believe that standing alone,
punishment imposed on Petitioner,

it justifies the severe
essentially a reduction of two

Although it may

It appears

Although the

6

pay grades. The Board also notes Petitioner's excellent service
both before and after the NJP and the support he is receiving
from his current command.
Given the circumstances, the Board
concludes that the NJP of 4 November 1999 should be removed from
Petitioner's record, which means that he will be reinstated to
his permanent grade of  
The correction should include but
not necessarily be limited to the removal of documentation
concerning the NJP and the performance evaluation for the period
of the NJP.

AOl.

After considering whether the facts of this case would have
warranted the removal of his recommendation for chief petty
officer even if NJP had not been imposed, the Board concludes
that any doubt should be resolved in his favor because of his
excellent service after the NJP.
that he has served for over two years as an A02, which adequately
punishes him for any error in judgment.
Therefore, he should be
advanced to chief petty officer on the date he would normally
have been advanced or in the last increment for promotion if the
actual date cannot be determined.

In this regard, the Board notes

RECOMMENDATION:

That Petitioner's naval record be corrected to show by

a.
removing the NJP of 4 November 1999 and all related documentation
from this record.

b.
That Petitioner's naval record be further corrected to show
that he was advanced to chief petty officer on the date he would
have been advanced absent the NJP, or on the last increment if
the advancement date cannot be determined.

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,
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

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.

W. DEAN PF
Executive Dir

8