DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

Docket 

AEG
No.7317-01
5 August 2002

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD OF

Ref:

(a) 10 U.S.C. 1552

Encl: (1) Case Summary

(2) Subject's Naval Record

1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, applied to this Board
requesting that his naval record be corrected by removing the
nonjudicial punishment (NJP) of 15 September 2000 and all
underlying documentation alleging sexual harassment, setting
aside the general discharge and RE-4 reenlistment code issued on
6 July 2001, and reinstating him on active duty.

2. The Board, consisting of Messrs. Brezna and Chapman and Ms.
Nofziger, reviewed Petitioner's allegations of error and
injustice on 24 July 2002 and, pursuant to its regulations,
determined that the partial corrective action indicated below
should be taken on the evidence of record.
considered by the Board consisted of the enclosures, naval
records and applicable statutes,

regulations and policies.

Documentary material

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
regulations within the Department

under existing law and
of the Navy.

b.

Petitioner's application

timely manner.

to the Board was filed in a

C.

Petitioner first enlisted in the Navy for four years on

However, he also received satisfactory performance

24 July 1986. During this first period of service, he received
NJP on two occasions and an adverse administrative remarks (page
13) entry.
evaluations, was advanced in rate to fire controlman third class
nreferred
(E-4) and was recommended for further advancement and  
reeniistment.
Petitioner then reenlisted for six years and then
performed in a superb manner.
He received no mark lower than a
perfect 4.0 on any of his evaluations, was advanced in rate to

1

fire controlman first class (E-6),
Marine Corps Achievement Medal (NAM) for outstanding performance
of duty.

and received the Navy and

d.

Petitioner again reenlisted for six years on 24 July

1996, thus obligating himself to serve until  
During the next two years,
more superb evaluations,
advancement recommendation of  
he was selected for chief fire controlman (FCC; E-7), and he was
advanced to that rate in early 1999.

he received his second NAM and three

all of which awarded the highest

"early promote."

23.July 2002.

In September 1998

e.

Unrebutted documentation in the record reflects that in

Petitioner and his wife elected not to terminate the

the Fall of 1998, Petitioner's 43 year-old, insulin dependent
Subsequently, medical
wife discovered that she was pregnant.
tests revealed that this child, a girl, would be born with Down's
Syndrome.
pregnancy; however, in January 1999,
when they were told that the fetus' aorta had not formed, and
survival to term was not likely and the mother's life would be
placed at risk.
that time, knowing that the child would surely die.
daughter was born on 21 January 1999 and died two days later. It
appears that this process cost Petitioner about $7500 in medical
expenses.
year-old stepson began having behavioral problems.

Additionally, at about this time, Petitioner's 15

Accordingly, it was decided to induce labor at

they received more bad news

Petitioner's

f.

On 5 February 1999 Petitioner was apprehended by civil

On 24 March 1999 he was convicted of this offense in

authorities and charged with soliciting the services of a
prostitute.
civil court and sentenced to a fine of $200, of which $100 was
No jail time, either
suspended, and probation for one year.
This information was
suspended or unsuspended, was adjudged.
relayed to representatives of the Naval Criminal Investigative
Service, who briefed Petitioner's new command, USS KEARSARGE
(LSD-3). However,
Petitioner's excellent fitness report for the period March to
September 1999, and he received a third NAM for outstanding
performance of duty from April to October 1999.

the conviction was not mentioned in

go

In September 2000 an investigation was conducted into
allegations that Petitioner had sexually harassed three female
Sailors assigned to KEARSARGE,
chain of command.
which they accused Petitioner of making inappropriate comments.
Two of the women stated that he solicited sex from them.
Statements were also obtained from several individuals who said
that one of the women,
a Fire Controlman Third Class (FC3; E-4)
Miranda B, had complained to them,
Petitioner's 

In two separate statements, Petitioner

All three women executed written statements in

at least two of whom were in his

and seemed upset about,

c0mments.l

' One of these individuals was  FC3 B ’s mother, who told the investigating
officer that when her daughter reported Petitioner's actions, she was "crying
hysterically."

2

either denied making the statements at issue, or said that his
comments had been misconstrued.
officer found that Petitioner had
solicited 
recommended NJP and administrative separation action.

t'sexually harassed and
sextt from the three female servicemembers, and

However, the investigating

h.

On 15 September 2000 the commanding officer (CO) of

KEARSARGE imposed NJP of a letter of reprimand, forfeitures of
pay totaling over $1700 and a suspended period of restriction for
the following violations of Article 92 of the Uniform Code of
Military 

Justice:2

. . 

. did, at Haifa, Israel, between

In that (Petitioner)  
on or about 1 July 1999 to on or about 31 July 1999,
SECN$VINST
violate a lawful general order, to wit:  
5300.26C 
 
. by
(Secretary of the Navy Instruction)
. . 
wrongfully sexually harassing A03 (Aviation Ordnanceman
Third Class) Claire (A),
. . 
some sexy underwear you have  

. by stating to her,  
on."

 

"That's

. . 

. did, at Portsmouth, Virginia,

In that (Petitioner)  
between on or about 1 November 1999 to on or about 30
November 1999, violate
5300.26C 
. SECNAVINST  
wrongfully sexually harassing A03 Kelly (M)
. by
stating to her,
and you would make a prime candidate."

"This division needs some divisional whores

. by

. . 

. . 

. . 

 

 

In that (Petitioner)
between on or about 6 January 2000 to on or about 13
February 2000, violate
wrongfully sexually harassing A03
"When are we going to have  
her,

. SECNAVINST  

. . 
sex?"

. did, at Portsmouth, Virginia,

. (A) by stating to

5300.26C, 

. . 

. . 

 

 

 

. 

. 

. by

 

 

. . 

. did, at Portsmouth, Virginia,

In that (Petitioner)
between on or about 1 April 2000 to on or about 17 July
2000, violate
wrongfully sexually harassing FC3 (B)
ltSex is a good way to relieve  
her,
pill because I hate  
were 20 years old again,
with 

I would have no problem having sex

"If I wasn't married and

. by stating to

condomstt,  and 

"Are you on the

. SECNAVINST 

stressll,  

5300.26C 

you.II

. by

. . 

 

. 

. 

. 

. 

.
1.

There is no indication in the record that Petitioner appealed the
NJP.

On 2 October 2000 Petitioner received an adverse fitness

report for the period of 16 September 1999 to 15 September 2000.
On that same date, the CO of KEARSARGE recommended to the
Commander, Amphibious Group (COMPHIBGRU) TWO that Petitioner be
detached for cause.
and he was reassigned to the latter command.

This recommendation apparently was approved

2 10 U.S.C.A. 
3 Department of the  Navy (DON) Policy on Sexual Harassment.

S 892 (West 1998).

3

j.

On 13 March 2001 COMPHIBGRU TWO initiated administrative

In accordance with Article

separation action by reason of misconduct due to commission of a
serious offense and civil conviction.
1910-142 of the Naval Military Personnel Manual (MILPERSMAN), an
individual may be separated due to commission of a serious
offense if the specific circumstances of the offense warrant
separation, and the offense could result in a punitive discharge
from a court-martial.
individual may be separated upon conviction by civil court if the
offense could result in a punitive discharge at court-martial,
the specific circumstances warrant separation, or if the "civil
sentence includes confinement for 6 or more months without regard
to suspension, probation or early release." MILPERSMAN 1910-144
also states that a conviction is binding on the issue of whether
misconduct has occurred  
(ADB) is required to find that misconduct did occur.

ahd an administrative discharge board

MILPERSMAN 1910-144 states that an

k.

After being notified of the separation action,

Petitioner then elected to present his case to an ADB, which met
At the ADB, the recorder presented evidence
on 24 April 2001.
pertaining to the civil conviction and the NJP, including the
documentation from the civil court,
into the allegations of sexual harassment, UCMJ Article 92 and
pertinent parts of SECNAVINST  
presented a number of provisions from the MILPERSMAN, including
Petitioner's civilian defense counsel
the foregoing articles.
also presented numerous exhibits, to include a statement from a
clinical psychologist and Petitioner's wife concerning the
stressors they were under during and immediately after her
pregnancy.
L stated as follows:

In this regard, the clinical psychologist, Dr. (Ph.D)

the report of investigation

The recorder also

5300.26C.

As a clinical psychologist with many years of experience in
both the public and private sector, it is my opinion that
any one of the
themselves, be considered extremely severe. Added together,
considering the severity and the fact that they were all
occurring simultaneously,
catastrophic.

. sources of stress would, by

could only be considered

 

. 

. 

In her statement, Petitioner's wife referred to the civil
conviction and said that she and her husband  
issue with Dr. (L) and he explained that during times of stress
with funerals, it is not unusual to make 

ttworked on this

mistakes.t'

1.

The recorder then elicited sworn testimony from the

three women allegedly victimized by Petitioner's sexual
harassment, and one other individual who testified concerning
All three victims
what FC3 B told him about those comments.
stated that at least some of Petitioner's comments were
However, they all
inappropriate and made them uncomfortable.
minimized Petitioner's misconduct to some extent, and two of the
women specifically said that they did not feel they had been
Additionally, two of the victims said that
sexually harassed.

4

Petitioner's counsel called
Petitioner should not be separated.
three other chief petty officers and a senior chief (E-8), all of
whom essentially testified that although Petitioner's actions
were inappropriate, he was worth saving and should be retained.
In his sworn testimony,
requested retention.

Petitioner gave his version of events and

m.

After the recorder and Petitioner's counsel made their

final arguments, the ADB retired for deliberation.
than an hour later, the ADB reconvened and the senior member
reported as follows:

Slightly more

 

. . 

. The (ADB)

misconduct-

By a vote of 3 to 0 the (ADB) finds that the preponderance
of evidence does not support a finding of  
By a vote of 3 to 0 the
commission of a serious offense.
(ADB) finds that the preponderance of evidence does support
a finding of misconduct-civil conviction
finds that misconduct did occur in the form of sexual
harassment and that harassment was of a nature to produce
However the (ADB) does
an intimidating work environment.
not find that the behavior meets the criteria of a serious
With regard to misconduct-civil conviction, the
offense.
(ADB) relied on MILPERSMAN (Article) 1910-144 and
recognized that it was bound to accept the findings of the
Specifically, the 12 month probationary
civilian court.
sentence satisfies the-clause  
confinement for 6 or more months without regard for
suspension, probation or early release."
0 the (ADB) supports (retention for) reason number one
(serious offense),  
and by a vote of 3 to 0 the (ADB)
supports (retention for) reason number 2 (civil conviction)
The (ADB) does not find that the civilian conviction
. 
for prostitution was of a nature to support separation.

t'civil sentence includes

By a vote of 3 to

. . 

. 

.

.

n.

On 20 April 2001 Petitioner's civilian counsel submitted

a letter of deficiency to COMPHIBGRU TWO, the ADB convening
authority, and requested as follows that the finding of
misconduct due to civil conviction be set aside:

onboard the USSS KEARSARGE.

It is apparent that the basis of the separation action
against my client was not for the civil conviction, but
instead for the allegation of the commission of a serious
offense, to wit: sexual harassment.
occurred on 5 February 1999,
reporting 
client reported aboard
action would be taken by the command on that charge and
that the matter was not an issue with his command.
allegations of sexual harassment not come up, clearly the
civilian conviction for soliciting a prostitute would never
been the subject of administrative separation action.
Since the (ADB) found no misconduct as to the allegation of
. 

. commission of a serious offense, I request that the

, he was advised that no

The civil conviction

immediately prior to my client

Shortly after my

. . . 

 

. 

Had the

5

finding of misconduct by reason of civilian conviction be
vacated.

. (note) that the  
. 

"12 months
'civil sentence

Under no circumstances does the

(T)he comments of the (ADB)  
of  probation sentence satisfies the clause
includes confinement for   six  or more months without regard
for suspension, probation or early release."'
statement is incorrect.
fact that the court imposed a suspended fine under a 12
month period of "probation"
civilian conviction was for an offense that can be
characterized as a "serious offense" in the military, which
is necessary for a civilian conviction to be binding upon
the (ADB).
. . 
(carries) a maximum punishment of six months of
confinement.
"serious offense" under military standards.
does not have a similar offense under the UCMJ.
in text)

As such, that offense does not qualify as a
The military
(emphasis

The offense of soliciting a prostitute

support a contention that the

That

 

 

.

0.

On 4 May 2001 COMPHIBGRU TWO forwarded Petitioner's
case, along with counsel's letter of deficiency, to the Navy
Personnel Command (NAVPERSCOM) recommending, in part, as follows
that Petitioner be separated despite the  
ADB's recommendation:

Arguments by the

(ADBls) finding that misconduct (sexual
but disagree with their conclusion

I concur with the  
harassment) occurred,
that it was not a serious offense.
Counsel for the respondent regarding the  
(ADB's) finding
are not in keeping with the statement by the (ADB) and the
guidance provided in the MILPERSMAN.
that (Petitioner) had committed the alleged misconduct in
violation of Article 92, UCMJ
. (the ADB was) bound to
determine that the offense qualified as a  
because a punitive discharge is authorized as a potential
sentence for that article.
respondent argues that the finding of misconduct based on
the civilian conviction for solicitation of a prostitute
should be vacated because, standing alone, it would not
I disagree.
have been used as a basis for separation.
Once the additional misconduct by (Petitioner) occurred the
Navy had every right to process him for all known reasons.

Additionally, counsel for the

Once the (ADB) found

tlserious  offense"

. . 

 

(Petitioner's) misconduct reveals a lack of respect for the
Navy's rules, and an even deeper lack of respect for the
The fact that this behavior
rights and roles of women.
spans an extended period of time is indicative of the depth
of his disrespect and his inability to perform on a
professional level with women in the Navy.
in civilian court for the solicitation of a prostitute and
his harassing statements made to a number of junior female
Sailors, for whom he served as a role model, expose his
are service discrediting, and
lack of moral character,
prejudicial to good order and discipline.

Because of his

His conviction

6

misconduct and lack of fitness to serve as a Chief Petty
. with a General
Officer, I recommend his separation
 
Discharge (Under Honorable Conditions).

. . 

The foregoing letter was submitted in the format set forth in the
The record does not specifically state that the
MILPERSMAN.
convening authority referred the letter to Petitioner or his
counsel for comment, but the MILPERSMAN does not contain any such
requirement.

P*

In a memorandum of 11 June 2001 to the Assistant

Secretary of the Navy for Manpower and Reserve Affairs
(ASN/M&RA), the Chief of Naval Personnel (CNP) endorsed the
recommendation for discharge, stating:

Discussion: The sexual harassment that precipitated
processing (Petitioner) for administrative separation was
manifested in the form of inappropriate remarks of a sexual
nature to junior enlisted females under his direct
supervision.
commit misconduct due to commission of a serious offense;
but committed misconduct due to civilian conviction.
(ADB's) finding of no misconduct due to a serious offense
is contradictory and may indicate misunderstanding of what
constitutes misconduct.

The (ADB) found that (Petitioner) did not

The

. 

. . 

This

(ADB's) recommendation for retention.

Recommendation: Separate (Petitioner)  
. discharge.
This case is forwarded
. 
overturn of the  
recommendation 
potential for further productive service and his disregard
for Navy Core Values and the rights and roles of women in
the Navy.
recommended action,
(misconduct).

Your approval of this letter will effect the

. is based on (Petitioner's) lack of

code will be GKB

. with a General
 

. recommending

. . 

The separation

. . 

ItGKBtt is assigned when
Separation code  
discharged by reason of misconduct due

an individual is
to civil 

conviction.4

q-

On 20 June 2001 Petitioner's counsel faxed a

supplemental letter of deficiency to NAVPERSCOM responding, in
part, as follows to the 4 May 2001 letter from COMPHIBGRU TWO:
Pursuant to MILPERSMAN 1910-710 if the (ADB) finds that the
preponderance of the evidence does not support one or more
of the reasons for separation alleged and recommends
retention then the Separation Authority must approve the
(ADB's) findings and recommendations unless the
overwhelming weight of the evidence of record was not
recoqnized  in which case, the Convening
Authority may reprocess'the case under Best Interest of the
Service for submission to SECNAV for final action.

4 Bureau of Naval Personnel Instruction  (BUPERSINST)  1900.8, encl. 

(2), 

p. 4.

7

Due to the fact that the (ADB) found by a vote of 3 to 0
that the preponderance of the evidence did not support the
allegations of misconduct due to commission of a serious
offense, and thereafter recommended that (Petitioner) be
retained 

I submit that pursuant to (the) MILPERSMAN

. 
clie;t must be retained on active duty as

my

. 

. 

.

.

recommended by the (ADB).

(emphasis in text)

r.

Although it is unclear whether the Senior Civilian

case on that same day, she

Accordingly, on 6 July 2001 Petitioner received a

ASN/M&RA  considered the 20 June 2001 letter

Official acting as  
prior to taking action in Petitioner's
approved the 11 June 2001 recommendation of CNP that Petitioner
be discharged.
general discharge
reenlistment code,
The Certificate of Release or Discharge from Active Duty (DD Form
214) reflects a separation code of GKB and separation authority
of "MILPERSMAN 1910-144,
I’ the article authorizing separation by
reason of civil court conviction.
misconduct,6 he was not eligible to
discharged by reason of  
receive involuntary separation pay.

after nearly 15 years of active service.

py reason of misconduct and an RE-4

Since Petitioner was

S.

In his application, Petitioner alleges that he was

to-the letter from COMPHIBGRU TWO to

denied due process of law because he was not given the
opportunity to respond  
NAVPERSCOM or the memorandum from CNP to  
reiterates his earlier assertion that given the provisions of
MILPERSMAN 1910-710, Petitioner should have been retained.
Finally, counsel alleges that Petitioner never should have been
separated by reason of misconduct due to civil conviction since
the real reason for the separation action was the NJP he received
for sexual harassment, and the ADB found this reason for
separation unsupported by the evidence.

ASN/M&RA.

Counsel also

t.

Federal courts have consistently held that if an
individual has a right to due process of law, the right is
violated and an administrative action will be invalidated
party to the action, acting in adversarial  
an ex  parte communication with the decision maker.
this prohibition does not apply to "internal documents of an
In this regard, courts have long held that a
advisory 
decision maker may rely on subordinates to analyze the record and

if a
Y' engages in

nature.'18

However,

capacit

5 This code means that Petitioner was not eligible to reenlist (chief of
Naval Operations Instruction   [OPNAVINST] 
assigned to an individual separated by reason of misconduct (BUPERSINST
i900.8, supra note 4).
7 Secretary of the Navy Instruction (SECNAVINST) 
States, 585 
Ct.Cl. 1980).
4
Sullivan v. United States, 720 

(Ct.Cl.  1967);  Ryder v. United
(Ct.Cl. 1978); Fitzgerald v. United States, 623 

F.2d 1266, 1272 (Fed. Cir. 1983).

Camero v. United States, 375 

F.2d 482 

1160.5C, 

1900.7G, 

F.2d  777 

q 6e).

9m.

n 

Such a code must be

F.2d 696

8

rygommendations.g

prepare 
F.D.I.C.,
Circuit elaborated as follows:

the United States Court of Appeals for the Federal

In the recent case of  Stone v.

. 

 

. . 

. and the opportunity to respond.

. constitutional due process guarantee

The introduction of new and material information by means
of ex  parte  communications to the deciding official
undermines the
of notice  
. 
deciding officials receive such ex   parte communications,
employees are no longer on notice of the reasons for their
dismissal and/or the evidence relied upon by the agency.
procedural due process guarantees are not met if the
employee has notice only of a certain charges or portions
of the evidence and the deciding official considers new and
material information.
It is constitutionally impermissible
to allow a deciding official to receive additional material
information that may undermine the objectivity required to
protect the fairness of the process

When

.. . 

 

.

. 

(N)ot every ex  parte  communication is a procedureal

. 
defect so substantial and so likely to cause prejudice that
it undermines the due process guarantee and entitles the
claimant to an entirely new administrative proceeding.
Only ex  parte  communications that introduce new and
material information to the deciding official will violate
the due process guarantee  
. Ultimately, the inquiry is
. 
and so likely to cause prejudice that no employee can
fairly be required to be subjected to a deprivation
under such circumstances."

. whether the ex   parte  communication is so substantial

. . 

. . 

 

. 

.

U.

MILPERSMAN 1910-710 sets forth the actions a separation

" the SA may approve the ADB findings and

Alternatively, the SA may approve only the

If the ADB "finds a preponderance of the evidence supports

authority (SA) may take upon receiving case in which an ADB was
held.
one or more of the reasons for separation and recommends
retention,
recommendations.
findings and submit the case "to
recommending separation for one of the specific reasons supported
by a preponderance of the  
"finds a preponderance of the evidence does not support one or
more of the reasons for separation alleged and recommends
retention," and "the overwhelming weight of (the) evidence of
record was not recognized by the (ADB),"
the individual is to
the Service for submission to SECNAV for final  
9 Morgan v. United States,
Incorporated v. C.A.B., 379 
lG$Iagement  

298 U.S.
F.2d 298 (D.C. Cir. 1967);  K.F.C. National

. (SECNAV)  
However, if the ADB

"reprocess the case under Best Interest of

Corp. v. N.L.R.B., 497 

468, 481-82 (1936);

nd Cir. 1974).

evidence."12

the only way to separate

Braniff Airways,

action."13

F.2d 298 (2

. . 

.

 

. . 

179 

F.3d  1368 (Fed.Cir.

1999).

l1 Id
12
l3 Id

., 1375-76.

MILPERSMAN 1910-710,

.I at p. 5.

p. 3.

9

V.

MILPERSMAN 1910-164 states that an individual may be

syparation.

issued an honorable or general discharge by reason of best
interest of the service if separation is appropriate, but the
individual does not meet the minimum criteria for any other
Only SECNAV may direct separation for
reason for  
An individual facing such a separation may not
this reason.
elect an ADB under any circumstances, but is entitled to notice
of such action, to consult with counsel, and to submit  
statement in rebuttal to the proposed separation action.
best interest of the service,
an RE-4 reenlistment code may be
reason 
assigned.
presumptively entitled to separation pay,
denied 
that the conditions under which the member is separated do not
warrant separation  
used 

pay."18 However, such authority is to "be

"(i)n extraordinary cases, when (SECNAV)

or secretarial authority, is the

A servicemember separated  

foT7this reason is

fo;6separation,

but such pay may be
. determines

sparingly."lg

al5

. . 

 

When

W.

Federal courts have consistently held that regulations
 
$?gulation  and a service

of the individual services must comport with those issued by
If there is a conflict between a DOD  
directive, the former is controlling.
instruction from SECNAV binds all of his subordinates in their
authority to issue  

Additionally, an

directives.21

DOI

I.

X.

DOD Directive (DODDIR) 1332.14,

which sets forth binding

guidance on enlisted administrative separations, states that an
individual may be separated by reason of misconduct due to
civilian conviction if the individual has been so convicted or
action is taken which is tantamount to conviction; the specific
circumstances of the offense warrant separation; and a punitive
discharge would be authorized for the same or a closely related
offense, or the individual is sentenced by civil authorities to
confinement 
or probation.
the Navy's implementing instruction, SECNAVINST  

The pertinent provision of the Department of

fo& six months or more,

1910.4B, is in

without regard for suspension

if an individual is separated due to  

BIOTS,  the narrative reason

Release or Discharge from Active Duty (DD
p. 12.

BUPERSINST  1900.8, encl. 

(2),  

214)  

"Secretarial Authority." See 

See  MILPERSMAN 1910-402.

l4 In fact,
for separation on the Certificate of 
TYrn  
l6 BUPERSINST 1900.8, encl.  
l7 10 U.S.C.A. 
(DODINST) 1332.29, 
~~r13/4RB11400.02  of 

(2), p. 12.
1 3.4; SECNAVINST 

is

SECNAVINST 

1900.7G,  

4Apr02.
9p.

P 

S 1174(b) (West, 1998); Department of Defense Instruction

1900.7G, 

n 9; DAJAG (Admin.  Law) Memo

lg Id.
20 Gilchrist v. United States, 33 
Kerein)-
Lopez, 35 M.J.  35, 39 
1997); United States v. Davis, 47   M.J. 484, 485-86   (1998).
42

Atch.  1, 

p 1.11.1.1.4.

Encl. 3, 

United States v. Daskam, 31 M.J. 77,  81 (CMA 1990);  United States v.

(CMA  1992);  United States v. Romano, 46  M.J. 269,  274

Fed-Cl.  791, 801 (1995) (and cases cited

10

However, as previously  

accord. 23
noted,24 MILPERSMAN 1910-144
states that an individual may be separated upon civil conviction
if the circumstances warrant separation; a punitive discharge
would be authorized for the offense; or there is a sentence to
confinement, with or without probation or suspension, for six
months or more.

Y-

This directive

As has already been  

If convicted by court-martial of violating a lawful
53$:.26C, a servicemember

mentioned,25  MILPERSMAN 1910-142
authorizes separation by reason of misconduct due to commission
of a serious offense if the offense could result in a punitive
discharge, and the circumstances of the offense warrant
separation.
general instruction such as SECNAVINST  
may be sentenced to a punitive discharge.
defines sexual harassment as unwelcome sexual advances, requests
for sexual favors and other verbal or physical conduct of a
sexual nature when submission to such conduct is made a term or
condition of an individual's career;
submission or rejection of
the conduct by the victim is used as a basis for career decisions
affecting this individual;
with the victim's duty performance or creates an intimidating,
hostile or offensive working environment.
verbal comments of a sexual nature in the workplace are
sufficient to constitute sexual  
142 states that separation processing is mandatory in sexual
harassment cases if an individual threatens or attempts to
adversely influence another's career in exchange for sexual
favors; rewards another individual in exchange for such favors;
or creates 
punitive discharge.

unwanted2ghysical  contact which could result in a

or the conduct unreasonably interferes

Deliberate unwelcome

harassment27

MILPERSMAN 

1910-

2.

If a discharge is found to be improper or unjust, the

record should normally be corrected to show  
completed the last period of obligated service.
action to show service beyond this point is almost never
required, since an individual has no right to  
However, courts have authorized the correction boards to backdate
a discharge and deny constructive service if backdating "places
the claimant where he would have been without the improper

thazgthe individual

reenlist.30

Corrective

¶I 

Kla(4)(a).

(2),  Pt. 1,  
3 3j.

23 Encl.  
24 Infra, 
25 Id.
26 Manual for Courts-Martial, United States (2000 
16e(l).
fi SECNAVINST 

5300.26C,  Encl.

(l),  

11 4.

ed.),[MCM]  Pt. IV, 

¶I

This provision of the MILPERSMAN does not preclude separation processing

for an individual who commits other forms of sexual harassment; it merely
$;quires  such processing for these aggravated forms of harassment.

F.2d 973 (Fed. Cir. 1985);  Thomas v. United States, 42

Maier v. Orr, 745 

;$d.Cl.  449,  453 (1998).

Id.

Additionally,

his enlistment,
detachment for cause  (OPNAVINST  1160.5, Encl. (2);

even if Petitioner had served until the expiration of
he would not have been permitted to reenlist because of the
MILPERSMAN 1160-030,  

I[ 5).

11

discharge,"31 or if 
on "absurd premises."
"mere 
speculation."33

a39 rant of constructive service would rest

Such a denial must not be based on

aa. In an advisory opinion of   18  March 2002, a

representative of the Judge Advocate General (JAG) responded to
Petitioner's contention that he was denied due process of law
because he was not permitted to respond to the 4 May 2001 letter
of COMPHIBGRU TWO and  
out that it appears that Petitioner's counsel may well have been
provided a copy of the former missive because he referenced it in
his own letter to NAVPERSCOM of 20 June 2001.
that internal, non-adversarial documents do not constitute
prohibited ex   parte 

CNP's 11 June 2001 memorandum.

communications.34

JAG then states:

JAG then notes

JAG points

. 

. 

. . 

. the communication at issue fails to meet the
. First, although an

Here 
impermissible ex   parte  criteria 
(ADB) is adversarial, the convening authority
(COMPHIBGRUTWO) is not an adversary in that proceeding;
rather, it is the recorder who is the adversary.
if the convening authority's recommendation was not based
on the record of proceedings, it would have assumed an
adversarial role; however, the evidence is clear that his
recommendation was premised on the fact that the (ADB)
ignored the overwhelming weight of the evidence.

Arguably,

JAG goes on to point out that the MILPERSMAN specifically
instructs the convening authority to submit a recommendation to
the separation authority,
a copy of that recommendation.
"the convening authority's communication at issue is not an ex
parte communication; rather,
decision-making authority."

and does not entitle the respondent to
Accordingly, JAG concludes that

merely internal advice to a superior

bb. JAG was also asked to comment on the apparent

inconsistency between the provisions of DODDIR 1332.14 and
SECNAVINST 
by reason of misconduct due to civil conviction.
JAG commented, in part, as follows:

1910.4B,  and the MILPERSMAN, pertaining to separation
In response,

DODDIR 1332.14 permits the separation of an enlisted member
who has been convicted of a civilian criminal offense if a
two-prong test is satisfied.
circumstances of the offense must warrant separation.
Second, either a punitive discharge would be authorized for
the same or closely related military offense, or the

First, the specific

United States, 204 
United States, 509 
United States, 213 

Denton v.
Carter v.
Carter v.
Citing  Morgan v. United States, infra, at note 7;  Della 

31
32
33
34
States, 231 
psychiatrist provided an opinion concerning an employee's mental fitness to
the decision maker but not to the employee).

Ct.Cl.  188, 200 (1974).
F.2d  1150, 1156 
(Ct.Cl.  1975).
Ct.Cl.  727, 731 (1977) (order).

Ct.Cl.  818, 821 (1982) (no impermissible communication when

Valle v. United

12

MILPERSMAN  1910-144 does not.

(1) the specific circumstances of the offense

sentence includes six months confinement without regard to
suspension or probation.
Rather, MILPERSMAN 1910-144 offers a reformulation of this
two-prong test, permitting separation in either of two
situations:
warrants separation, and the offense would warrant a
punitive discharge for the same or closely related military
offense 
or (2) the civil sentence includes
confinement of'six months or more without regard to
suspension, probation or early release.
situation is consistent with applicable superior
directives.
because a mandated element of the basis for separation is
omitted; namely, that the specific circumstances of the
offense warrants separation.

Conversely, the second situation is not

. 

. 

.

Clearly, the first

In applying this test to Petitioner's case, JAG states:

The (ADB) had no evidence that (the military

The government submitted evidence of the
12-month

The record of proceedings indicates that the Petitioner was
prejudiced by this inconsistency.
MILPERSMAN 1910-144, a
Government exhibit, was the only governing provision before
the (ADB).
Petitioner's conviction and sentence of a  
probation.
offense of) solicitation of prostitution was punishable
. 
Petitioner's sentence of  
MILPERSMAN 1910-144's requirement; however, it "did not
find that the civil conviction
.
. . 
support separation."
Obviously, the
conclusion is that the (ADB) adhered
construct of MILPERSMAN 1910-144, to
Petitioner.

was of a nature to
only reasonable
to the errant
the prejudice of the

I2 months of probation satisfied

. with a punitive discharge.

The (ADB) found that the

 

. 

probation, the

The (ADB) agreed with the Government and found

Even though Petitioner received only
convening authority processed for administrative separation
pursuant to MILPERSMAN 1910-144, apparently under the
theory that the civilian sentence included confinement of
six months.
that the conviction qualified as a
includes confinement for 6 or more months without regard
for suspension, probation or early release."
clearly erroneous.
considered in the context of the inconsistency between
MILPERSMAN 1910-144 and DODDIR 1332.14, because
 
. . 
conviction alone directed the (ADB) to find that the
Petitioner committed misconduct, and the conviction was the
sole basis for the Petitioner's separation.

The error was prejudicial, when

"civil sentence [that]

This is

. the

JAG goes on to point out that the military
solicitation of prostitution is punishable

offense of
with a punitive

13

. 

. 

 

discharge,35 and could have provided a supportable basis for
However, JAG then notes that this would likely not
separation.
have produced a different result since "an element of the basis
. is that the circumstances surrounding the
for separation
offense warrant separation, and the (ADB),.
determined that this offense did not warrant separation."
then concludes that the  
conviction by civil authorities
clearly erroneous," but further notes that Petitioner could have
been reprocessed for separation by reason of best interest of the
service.

ADB's finding of misconduct due to

"should have been rejected as

. specifically
. 

JAG

 

cc. JAG also commented on the assertions in the

COMPHIBGRUTWO letter and CNP memorandum to the effect that the
ADB was required to determine that Petitioner's sexual harassment
constituted misconduct due to a serious offense simply because a
punitive discharge was authorized:

The government must prove both that

MILPERSMAN 1910-142 permits the separation of enlisted
service members for (sic) reason of misconduct (commission
of a serious offense).
the specific circumstances of the offense warrant
separation and the offense would warrant a punitive
discharge per the (MCM) for the same or a closely related
offense.
the affirmative, then the (ADB) must find that the
respondent committed misconduct, recommend if the
respondent should be retained, and determine a
characterization of service

If the (ADB) finds both of those requirements in

.. . 

 

.

. 

(T)here is no legal authority for the proposition

. 
that a violation of any MCM provision is a per se serious
offense.
a formulaic definition, but additionally, such an
interpretation renders the two elements of MILPERSMAN  
142 a mere tautology

Not only does the MILPERSMAN fail to provide such

. . 

 

.

1910-

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that partial corrective action is warranted by
changing the reason for separation from misconduct to best
interest of the service, or secretarial authority.

The Board can find no reason to change Petitioner's record by
removing either the NJP or the underlying documentation
pertaining to sexual harassment.
his innocence of the allegations during the NJP process, the CO
of KEARSARGE chose to believe the allegations of the victims and

Although Petitioner protested

35 See MCM, Pt. IV, 

99 

105e, 

97a, 

97e(l).

14

the conclusion of the investigating officer that Petitioner had
engaged in such misconduct.
Petitioner chose not to appeal this
adverse finding after being advised that he had a right to do so.
Even though he continued to maintain his innocence at the ADB,
the members rejected his assertion and concluded that he had
committed sexual harassment as alleged.
This conclusion is
supported by the NJP and supporting documentation introduced as
evidence before the ADB, and by the testimony of the victims.
After examining the relevant provisions of SECNAVINST  
the Board essentially agreed with the ADB that Petitioner's
comments constituted sexual harassment since they created an
intimidating or hostile work environment.
indicates that such comments in the workplace constituted sexual
harassment because they were deliberate, unwelcome, and of a
sexual nature.
requests removal of the NJP and underlying documents in his
application, he presents no argument whatsoever in support of
that request.

Finally, the Board notes that although Petitioner

Indeed, the directive

5300.26C,

Turning to Petitioner's administrative discharge, the Board first
considered his contention that he was denied due process of law
since he was not provided with copies of COMPHIBGRUTWO's letter
of 4 May 2001 or 
It is clear
that this contention is without merit.
not engage in an impermissible ex   parte communication in an
adversary capacity, but merely analyzed the ADB record of
proceedings and made a recommendation to his superior,  
This is the sort of internal,
clearly allows.

CNP's memorandum of 1 June 2001.

advisory missive that the law

In his memorandum CNP did

ASN/M&RA.

The Board also concludes that given its content, COMPHIBGRUTWO's
letter also is legally unobjectionable, although it is not as
sure as JAG seems to be that the convening authority is in a
totally non-adversarial position since COMPHIBGRUTWO initiated
the separation action against Petitioner.
clear that the letter did not raise any new reasons for
separation or introduce any new evidence against Petitioner.
COMPHIBGRUTWO simply recommended a course of action based on the
ADB record of proceedings.
Since the letter did not raise any
new and material evidence, it does not constitute an
impermissible ex parte communication.

Nevertheless, it is

The Board also rejects Petitioner's contention that MILPERSMAN
1910-710 required his retention because the ADB made a finding
that "a preponderance of the evidence does not support one or
more of the reasons for separation."
provision governs Petitioner's case, he could have been
reprocessed by reason of best interest of the service.
the Board believes the applicable provision of MILPERSMAN
710 is the one that provides that if the ADB "finds a
preponderance of the evidence supports one or more of the reasons
for separation and recommends retention," the case may be
submitted to SECNAV with a recommendation for separation.
provision describes what happened in Petitioner's case---the ADB

First of all, even if that

Second,
1910-
 

This

15

However, this conclusion is of only marginal

Accordingly, CNP forwarded the case to SECNAV,

found that misconduct due to civil conviction was supported by
the evidence, but misconduct due to commission of a serious
offense was not.
recommending separation for the former reason.
The Board
believes that the provision pertaining to retention or
reprocessing was only intended to apply to a situation in which
the  ADB found  none  of the reasons supported by a preponderance of
the evidence.
consequence, given the Board's basic agreement with that part of
the JAG opinion which states that Petitioner never should have
been separated by reason of misconduct due to civil conviction.
The Board notes JAG's belief that MILPERSMAN 1910-144 allows
separation if the specific circumstances of the offense warrant
separation and the offense would warrant a punitive discharge, or
if the civil sentence includes confinement for six months or
more.
is a conviction, separation may be directed if the specific
circumstances of the offense warrants separation,   or the offense
would warrant a punitive discharge,   or the civil sentence
includes more than six months of confinement.
Board agrees that 1910-144 does not comply with the binding
guidance set forth in DODDIR 1332.14, and that Petitioner was
prejudiced by this noncompliance.

However, the Board's reading of 1910-144 is that if there

In any case, the

relief would normally consist of a

However, the Board does not believe such

Since Petitioner was discharged by reason of misconduct due to
the civil court conviction,
correction to the record to show that he served until the
expiration of his last enlistment on 23 July 2002, and was
separated at that time.
action is warranted here.
authorities been aware that separation was by reason of
misconduct due to civil conviction was improper, Petitioner could
have been reprocessed for separation by reason of best interest
of the service if "the overwhelming weight of the evidence was
not recognized by the  
Given the very strong comments
in the COMPHIBGRUTWO letter and the CNP memorandum recommending
separation, the Board believes Petitioner inevitably would have
been reprocessed and discharged.
have been totally appropriate,
persistent sexual harassment of junior personnel.

Furthermore, such action would
based on Petitioner's willful and

It is very clear that had appropriate

(ADB)."36

coupled with the possibility of a
mandated a finding of misconduct by reason of
The Board agrees with JAG that

The Board rejects the theory of COMPHIBGRUTWO and CNP that
Petitioner's sexual harassment,
punitive discharge,
commission of a serious offense.
in addition to these findings, the ADB had to find that the
circumstances of his offenses warranted separation.
ADB specifically declined to so find,
had not committed a serious offense is technically correct.
Further, the Board believes that the ADB may have been correct in
its conclusion that the conviction did not warrant separation
since it occurred about 18 months before separation action was
36 Infra, 

its overall finding that he

Since the

I[ 

3u; note 13.

16

initiated and there may have been some mitigating factors
involved, given Petitioner's personal life at the time.
Additionally, as JAG points out, the ADB failed to recognize the
overwhelming weight of the evidence of record when it erroneously
found that Petitioner's sentence from the civil included
confinement for six months or more.
the basis of the civil conviction would not have been
appropriate.

Accordingly, reprocessing on

Petitioner

Instead, he used that position to make

As such, he was supposed to

Further, the women he victimized were

The Board believes that the ADB ignored the overwhelming weight
of the evidence in finding that Petitioner's sexual harassment
was not sufficiently serious to warrant separation.
was serving as a chief petty officer, a position of senior
enlisted leadership at his command.
set a good example.
totally inappropriate comments and even solicit sex from female
servicemembers.
and he had a supervisory relationship
considerably junior to him,
Additionally, his misconduct was not
with at least two of them.
limited to an isolated incident; he harassed three women, some of
them on more than one occasion.
particular significance to,
to minimize Petitioner's actions.
superiors, not his juniors, to appropriately judge his conduct.
In sum, the Board believes that COMPHIBGRUTWO and CNP were
correct when they opined,
respectively, that Petitioner had serious problems dealing with
women.
The Board believes that in today's Navy, a Navy in which
women play such a large and vital part, there is no room for an
individual such as Petitioner who behaves in such an
inappropriate manner, especially while serving in a position of
leadership.
The Board believes that the ADB, in finding to the
contrary, simply turned a blind eye to the evidence.

The Board notes, but ascribes no
the comments of the victims that tend

It is up to Petitioner's

*in their letter and memorandum

Accordingly, the Board believes that even absent the finding of
misconduct due to civil conviction, Petitioner would have been
reprocessed for separation due to best interest of the service,
and SECNAV clearly would have directed discharge for that reason.
It is therefore appropriate,
in lieu of constructive service, to
simply substitute a discharge by reason of best interest of the
service for the discharge due to misconduct now of record.
Board also sees no reason to change Petitioner's general
discharge or RE-4 reenlistment code, since both are authorized
when an individual is separated due to best interest of the
service, and both are appropriate in Petitioner's case, given the
misconduct of record.

The

Additionally, the Board concludes that this is one of those
extraordinary cases in which an individual should not receive
separation pay, despite his presumptive eligibility for such pay.
In this regard, the Board notes that Petitioner is essentially
being discharged due to documented misconduct, and individuals
discharged for that reason are not eligible for separation pay.

17

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that on 6
July 2001, he was discharged by reason of best interest of the
service (secretarial authority),
misconduct now of record.

vice the discharge by reason of

b. That the record be further corrected to show that the
Secretary of the Navy determined that the conditions under which
Petitioner was separated do not warrant separation pay.

C . That no further relief be granted

d. 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.

e. That any material directed to be removed from Petitioner's
naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.

for retention in a confidential file
with no cross reference being made a

together with a copy of

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

#yg

ALAN E. GOLDSMITH  
Acting Recorder

’

5. The foregoing action of the Board is submitted for your review
and action.

18