DEPARTMENT OF THE NAVY,

BOARD FOR CORRECTION OF NAVAL RECORD
ANNEX

NAVY 

2 

WASHINGTON DC 20370-510

0

S

WMP
Docket  No:
4 November   2002

6890-02

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10 of the
United States Code section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 30 October 2002.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
of your application, together with all material submitted in
support thereof, and applicable statutes, regulations and
policies.

Documentary material considered by the Board consisted

Your allegations of error and

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

The Board found that you reenlisted in the Navy on 15 September
1989 for six years as a petty officer second class
  (E-5) after
over eleven years of prior naval service. The record reflects
that you served without incident until you received nonjudicial
punishment (NJP) for failure to obey a lawful order and
disrespect to a petty officer.
forfeiture of $200, restriction and extra duty for 14 days, and
a reduction in rank from petty officer second class
petty officer third class  
(RM3;E-4).
suspended for a period of six months.

The punishment imposed was a

The reduction was

 

(RM2;E-5)  to

On 25 January 1995 you appealed the NJP contending that it was
unjust and that the Report and Disposition of Offenses (NAVPERS
1626/7) was not the same form that you had signed before mast.
You stated that the Report and Disposition of Offenses (NAVPERS

1626/7) you signed only included the charge of disrespect, and
Your appeal was
your signatures on the form had been forged.
forwarded by your command on 30 January 1995, but was denied on
14 April 1995.

On 27 January 1995 you were placed on report for failing to
report for duty at 0600 on 19 January 1995 and at 0700 on 23
January 1995,
As a result of this misconduct,
of 18 January 1995 was vacated on 3 February 1995.
February 1995, these pending charges were dismissed.

and for insubordination to a chief petty officer.
the suspended reduction in rate

On 7

On 6 February 1995, you submitted a special request to see the
Commander, Military 
MIDLANT).
cancelled and you were told that the charges had been dismissed,
but then you were told the charges had not been dismissed.
request shows that your rate was still RM2.

You said that a 3 February 1995 NJP had been

Sealift Command, Middle Atlantic (COMSC

Your

On 7 February 1995, you were issued order by Naval Medical
Center, Portsmouth transferring you to the Transient Personnel
Unit (TPU) at Norfolk, VA.
During the course of treatment, a
medical board convened, however,
unavailable, the condition for which you were treated for is
unknown.

since your medical records were

"Examiner of Questioned Documents" opined
1626/7 were

On 19 April 1995, the
that the signatures on the 13 January 1995 NAVPERS  
not written by you, but were transferred to that document by a
photocopy or transfer process.
the Naval Criminal Investigative Service (NCIS) for assistance
regarding your allegations, however, they declined to
investigate.

On 24 April 1995 you contacted

On 7 June 1995, the Inspector General (IG) for Commander in
Chief, U. S. Atlantic Fleet (CINCLANTFLT) investigated your
complaint of an improper personnel action.
his investigation concluded that the signatures were made by a
human hand and concluded that you had signed the original
document.
provided at your NJP,

and your complaint was unsubstantiated.

The investigation also concluded that due process was

The IG stated that

On 25 July 1995, your attorney sent a letter to the Navy
Congressional Liaison Office in which he requested an
investigation into the falsification of an official document and
complained about CINCLANTFLT  
a senator's inquiry, the Deputy Chief of Naval Personnel (CNP)
noted that the reduction in rate to RM3 placed you in a high
year tenure (HYT) status which precluded you from reenlisting,
but, you could request to remain on active duty long enough to
take the advancement examination for RM2 twice.
advised to petition this Board if you felt you NJP was the
Additionally, you were told
result of an error or injustice.
that you could request NCIS to examine the original report chit
to determine if it was authentic.
authentic, you could then request that your NJP be set aside on
that basis.

Subsequently, you applied to the Board.

If it was found not to be

IG's investigation.

In response to

You were also

On 13 September 1995, the TPU, Norfolk submitted a request for
this request was denied by CNP on
waiver of HYT limits, however,
You were honorably discharged on 13 December
28 September 1995.
1995 by reason of "Non-Retention on Active Duty" and assigned an
RE-4 reenlistment code.

The reported noted that the NCIS Forensic

On 19 October 1995, at your request, NCIS initiated an
investigation into your allegations of forgery.
1996, the NCIS completed its investigation into your
allegations.
laboratory had examined the document in question containing the
On 20 December
three signatures alleged to have been forged.
1995 a NCIS document examiner concluded "there was evidence
which indicated, but was far from conclusive, that she may have
prepared the questioned signatures appearing on the front of the
report chit."

On 1 February

On 12 December 1996, your former officer-in-charge (OIC)
provided a statement concerning the vacated reduction in rate
and your allegations that you were not afforded a hearing, as
required  by regulation, prior to the reduction.
the reduction in rate was vacated at a hearing held by him and
his assistant the day after you submitted a special request chit
At that time, the suspended
to speak with the COMSC MIDLANT.
reduction in rate was vacated and the pending charges were
dismissed, not for the lack of supporting evidence, but as a

He stated that

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matter of expediency since the ship was getting underway and he
had been directed to transfer you to the naval hospital. He
further stated that you declined to make a statement at the
and that it appeared that an
hearing concerning your actions,
administrative error had been made as to the effective date of
the reduction in rate, which should have been 7 Febraury vice 3
February 1995.
counsel on 10 April 1997,
3 February 1995 vice 7 February 1995.

This statement was further rebutted by your

who contended that you were reduced on

The Board also

On 28 August 1997, your counsel was advised that your case had
been presented to the Board and it had recommended removal of
the 3 February 1995 vacation action.
recommended, conditioned upon your approval, transfer to the
Fleet Reserve under the provisions of the Temporary Early
Retirement Authority (TERA).
In this regard, the Board felt
that you should approve such a recommendation because it could
be considered detrimental since the involuntary separation pay
you received upon discharge would be recouped if the record was
corrected to show a transfer to the Fleet Reserve.
was further advised that if you found transfer to the Fleet
the Board recommended that the
Reserve to be unacceptable,
reason for discharge be changed to
"Completion of Required
Active Service" and the RE-4 reenlistment code be changed to
RE-1.
recommendation other than complete reinstatement to active duty
was unacceptable.
On 2 October 1997, counsel further advised
that you had rejected transfer to the Fleet Reserve.

The following day, your counsel responded that any

Your counsel

On 23 February 1998, the secretarial designee directed that your
records be corrected to show that you were involuntarily
discharged on 13 December 1995 by reason of "Completion of
Required Active Service" vice
assigned an RE-1 vice an RE-4 reenlistment code, and assigned an
involuntary separation code of  
Your records
were further corrected to show that the reduction in rate to
RM3, which was suspended on 18 January 1995, was not vacated on
3 February 1995, and that you were never reduced from  
RM2 to
RM3.
Additionally, certain corrections to your enlisted
performance 

"Non-Retention on Active Duty",

recore (page 9) were directed.

"JBK" vice 

"JGH".

In its review of your current application the Board carefully
weighed all potentially mitigating factors such as your

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However,

As a result of numerous consultations

contention that you were in a depressed state of mind after your
discharge and this adversely affected your decision-making
ability to the extent that you committed an error in judgement
by declining transfer to the Fleet Reserve under TERA.
the Board's previous decision of 27 August 1997 included an
offer to so transfer vice being discharged for "Completion of
Required Active Service".
with BCNR representatives and your counsel you decided, on 1
October 1997,
to accept your discharge vice transfer to the
Furthermore, the Board concluded that given the
Fleet Reserve.
fact that a significant amount of time was afforded you to come
to the decision to accept the discharge option, and the fact
that you failed to provide any evidence stating that you were
incapable of making a competent decision, the Board concluded
that appropriate relief had already been granted in your case
Accordingly,
and no further corrective action is warranted.
The names and votes of the
your application has been denied.
members of the panel will be furnished upon request.

You are entitled to have

It is regretted that the circumstances of your case are such
that favorable action cannot be taken.
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board.
a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

it is important to keep in mind that

In this regard,

Sincerely,

W. DEAN PFEIFFER
Executive Director

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