DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-510

0

VAL RECORD  

OF

(a) 

Title 10   U.S.C.  1552

TRG
Docket No:  
10  March  2002

8503-00

(1) Case  
(2) 

Summarq

Sublect's  naval record

Sub]:

Ref:

Encl:

provlslons of reference (a),  

Petltloner, an

flied an  

appllcatlon 

his record be corrected   by 

with 

th1.s
removing the

(NJP) of 26 January 2000 and two related

In the Naval Reserve,

Pursuant to the  

1.
officer  
Board requesting that  
nonJudlcia1  punishment
fitness reports.

The Board,

2.
LeBlanc, reviewed 
on 26 February 2002 and,
that the  
available 
the Board consisted of the
applicable statutes,

corrective 
evidence of record.
 

action 

conslstlng of Messrs.

Llppolls and  

Petltloner's 

allegations of error and  

Gelsler and Ms.
lnlustlce

ppursuant to  

Its regulations, determined
lndlcated  below should be taken on the

Documentary 

mater-la1 considered by

ernclosures.,  naval records, and

regulations and policies.

The Board,

3.
to Petitioner's allegations of error and injustice,
follows:

having reviewed all the facts of record

 

 

pertalnlng

finds as

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.

Petitioner served on active duty in an enlisted status

;i June 1982 until 15 June 1988.
from 
completed a master of divinity degree.
commissioned a LTJG (O-2) in the Chaplains Corps of the Naval
Reserve.
years,
Medal and a Navy Commendation Medal.
at issue,
Station,

Petitioner was assigned to the Marine Corps Air

He then served in an excellent manner for

was promoted to LT  

Cherry Point, NC.

After discharge, he

(O-3), and received a Navy Achievement

At the   time of the incident

On 26 May 1992 he was

 

almostiight

d.

On 4 October 1999 an investigation was conducted, in

accordance with Article 32 of the Uniform Code of Military
Justice (UCMJ),

because charges of assault and conduct unbecoming

an officer and a gentleman had been preferred against Petitioner
under UCMJ Articles 128 and 133.
Petitioner improperly kissed Mrs. S,
a party;
servicemember.
assault charge as follows:

and made an improper remark to PN2 D, a female

The investigating officer's (IO) analyzed the

The charges alleged that

the wife of an  

HMl (E-6), at

Charge I lacks probable cause.

Specifically the

facts suggest that a kiss occurred between the accused
. . . 
and Mrs.
contends that while at a going away party . . . . the
accused

"put his hands on my shoulders and kissed me."

(S), but the kiss was consensual.

 

Mrs%, 

(S)

(S) to

HMl (S), who

(S) testified

. testified that the
( S ) 

.

Mrs.

(S's) husband  

(HMl S)  

. . 

accused admitted to him that he had kissed Mrs.
(Later) the accused apologized for kissing Mrs. (S),
but claimed that the kiss was consensual and was
initiated by Mrs.

(S).

Ms.

(E's) testimony supported the alleged

(E) testified that

(S) was flirting with the

admission by the accused. Ms.
during the party Mrs.
accused,
was overly attentive toward the accused, and
that the accused was shying away from her advances. At
one point during the party, the accused led Mrs.
sit in a chair and told her to "behave" herself. Ms.
(E) also saw the accused apparently reprimanding Mrs.
(S) because of her behavior towards him.
did not see the kiss,
circumstances of the party and his wife's demeanor
before and after the alleged kiss.
that his wife immediately told him about the incident
after it had occurred and that she was visibly upset.
. 

also testified about the

HMl 

The evidence does not support the charge of
In order for the alleged kiss to be an

(S) states that she did not invite the

it would have to be a non-consensual act.

assault.
assault,
Although Mrs.
kiss, other facts suggest that it
consensual or even initiated by her.
(S) may have a motive to misrepresent her encounter
with the accused in order to avoid conflict and
embarrassment with her husband.
testify at the hearing further supports that theory of
the facts.

may have been

 

. 

.

. 

. 

Furthermore, Mrs.

Her unwillingness to

the IO also concluded that there was probable cause to
 

However,
believe that Petitioner kissed Mrs. S and stated to a PN2
would it take for you to sleep with
The IO determined that in both instances, Petitioner was guilty
of conduct unbecoming an officer and a gentleman.
IO noted that PN2  

D's statement was the only evidence concerning

me", or words to that effect.

However, the

 

B_"what

2

the improper remark,
misconduct concerning the incident.

and she was under investigation for

e.

On 26 January 2000 Petitioner received nonjudicial

punishment of a punitive letter of reprimand for the following
specification of conduct unbecoming an officer and a gentleman:

In that (Petitioner) a married officer, on or about 22
May 1999 at New Bern, North Carolina, did wrongfully
kiss Ms.
enlisted service member in (his) command, which conduct
was unbecoming of an officer and gentleman.

a person who was married

Kathleen (S) ,

 

.tq_an

He was found not guilty of the other charge of conduct unbecoming
apparently based on Petitioner's
an officer and a gentleman,
explanation and the possible disciplinary action against PN2 D.
Additionally,
not be required to "show cause"
duty.

the commanding general recommended that Petitioner

for further retention on active

e.
follows:

In his appeal of the NJP, Petitioner stated, in part, as

. 

I never initiated,

For reasons that I can only speculate

gave me a kiss on the lips.

(S) and believe that there is ample

. Approximately eight months ago, while at a private
. 
off-base party, Mrs. Kathleen (S), a woman married to a
senior enlisted man,
"peck" is what has led me to this day in may career as
a naval officer.
on, the woman claimed that it was I who initiated this
invited or anticipated any
kiss.
kiss from Mrs.
supporting evidence to show that it was she who was
coming onto me at the party.
investigate these charges at an Article 32 hearing
found her statement not to be creditable due to: 1) her
refusal to appear at the hearing, 2) her flirtatious
behavior at the party as witnessed by others, and 3) my
good behavior at the party as witnessed by others . . . .
When I noticed her behavior at the party, I had a
private discussion with her during which I advised her
that her actions were inappropriate.
she began to act in what I would considered an
appropriate manner and I thought the issue was settled.
Sometime later,
hello and to show her that I was in no way upset with
her and this is when the kiss occurred that is the
subject of this appeal.

I approached her in the kitchen to say

The officer appointed to

After this talk,

This

 

i 

_.

. 

. At my NJP,

. 
what in hindsight was a poor decision on my part: to

I believe that I was found guilty due to

3

I agree that trust is vital to my position

attempt to continue a cordial conversation with someone
who was previously acting in an inappropriate manner
towards me.
as a chaplain and that by putting myself in the
position where someone could kiss me in a compromising
fashion,
chaplain and one faithful in my spiritual walk I should
be (the) one setting the moral example for our young
sailors and Marines to follow.
with the finding that because I did not predict her
behavior and put myself in this position that I was
somehow at fault.

that same trust could somehow be shaken.

I disagree

However,

As a

. 

my approaching her in the kitchen and not

. My conduct was not criminal in nature.

. 
Specifically,
predicting her behavior does not satisfy the definition
of conduct unbecoming and officer and gentleman. As
defined in Article 133 of the UCMJ, conduct unbecoming
is that
"action or behavior in an official capacity
which, in dishonoring or disgracing the person as an
officer,
as a gentleman,
or private capacity which,
the officer personally,
person's standing as an officer."
fall into either of 

seriously compromising the officer's character
or action or behavior in an unofficial

t&ese categories. . . . . .

seriously compromises the

My actions do not

in dishonoring or disgracing

f.

In his endorsement to Petitioner's appeal, the

commanding general stated, in part, as follows:

. 

.

(S).

he did not initiate the kiss in

(Petitioner) maintains that
(S) was flirting with him earlier in the

(Petitioner's) position on appeal appears to be
. 
that he should not be punished because, according to
his version of events,
question with Mrs.  
although Mrs.
evening, he merely followed her into the kitchen where
she later kissed him.
kiss was involuntary on his part in that his only
mistake was in "failing to predict her behavior." In
effect,
victim,
the other hand,
unwelcome,

the Chaplain seems to characterize himself as a
and not a voluntary participant.

characterizes the kiss as unexpected,

and initiated by (Petitioner).

Essentially, he claims that the

Mrs. (S), on

. 

. Even considering (Petitioner's) version of events,

. 
he nevertheless followed a woman (married to an
enlisted Sailor in his command and whom he believed was
pursuing him) into a room where he was alone with her.'
Once there,
he touched the woman's shoulder, embraced
her with one arm,

and wound up kissing her on the lips.

_ 

_.

4

Further,
. 

. 

. 

in the ensuing moments, Mrs.

. observed her to be quite upset.

(S) 

‘s husband

  the

givi,ng_her

. 

At that time, the

He also admitted to  

during the course of events

. As for the voluntariness of the Chaplain's conduct,

. 
I note that in (his) interview with Commander (D),
preliminary investigating officer, he explained that
Mrs. 
(S) moved her head forward to kiss him, and that
he did the same towards her.
Chaplain further described the kiss as a "friendly kiss
he might give anyone."
a "one-armed hug"
surrounding the kiss.
the NJP hearing,
(D)
contest the accuracy of the investigating officer's
summary.
occurred,
Captain (B), USN,
this be happening."
Thus, soon  after the event, the
Chaplain's position appeared to be that this kiss was a
consensual act between two adults.
did not claim that he was the victim of what would have
been, in effect,

Furthermore,
the Chaplain asked his Commanding officer,

when questioned regarding Commander

's version of their interview,

soon after the incident

an assault by Mrs.

"if the kiss was consensual would all

It's also worthy to note that at

At that time, he

the Chaplain did not

(S) 

f

_ 

. Accordingly,

based on all of the facts and

initiated a touch to her shoulder,

. 
circumstances presented during the NJP proceeding, I
found that (Petitioner) purposely followed Mrs. (S)
into the kitchen,
and then voluntarily kissed her (regardless of who
actually initiated the kiss).
For any officer,
especially a  
the lips under such circumstances is,
conduct unbecoming an officer and gentleman.
Unquestionably,
the Chaplain's actions that night with
the wife of one of his enlisted Sailor's transcend mere
"poor judgment,"
and tend to seriously compromise his
standing as an officer and his character as a
gentleman.

to kiss a subordinate's wife on
  in my opinion,

Chapla.in,

On 23 February 2000,
Bases, Atlantic,

the Commanding General, U. S. Marine Corps

denied Petitioner's appeal.

In the fitness report for the period 20 February 1999 to

Jazuary 2000,

Petitioner was assigned marks of 4.0 in every

31 
category and was recommended for promotion.
comments in the report state that he
behavior in May 1999."
ending 29 May 2000, is adverse, with marks of 2.0 in sever&l
categories,
of 26 January 2000.

"engaged in unacceptable
The next fitness report, for the period

and the comments mention the nonjudicial punishment

However, the

5

h.

Since the NJP,

Petitioner has continued to serve in an

outstanding manner and has been recommended for early promotion
in the fitness reports covering the period 29 May 2000 to 31
January 2002.
to LCDR  
2005.

although he has failed of selection
(O-4), he has been extended on active duty until 1 March

In addition,

1 .

on the issue as to whether Petitioner's‘

Attached to enclosure (1) is an advisory opinion
from the Deputy Assistant Judge Advocate General (JAG) for
Criminal Law,
actions constituted the sort of dishonorable or disgraceful
behavior required to support a charge of conduct unbecoming
an officer and a gentlemen,
evidence which shows the kiss was consensual.
states,

given the contention and

as follows:

in part,

The opinion

 

~_ 

_

. 

. 

'constituted conduct

. In order for an officer to be on notice that his

. 
or her acts or omissions
unbecoming an officer' we use a 'reasonable officer'
standard. . . . It is up to the fact finder to examine
listen to the testimony of the
all the circumstances,
witnesses 
appropriate reasonable officer standard. . . .
officer conducting NJP determined that the act had
taken place and that  
the act constituted conduct
unbecoming an officer in light of all the
circumstances.

. and then determine and apply the

(T)he

. . 

The opinion concludes that the NJP was supportable in law
and fact.

j.

Also attached to enclosure (1) is an advisory opinion

This opinion essentially concludes that the two fitness
covering the period 20 February 1999 to 29 May

from the Performance Evaluation Branch in the Navy Personnel
Command.
reports at issue,
2000, were properly filed in Petitioner's record.
notes that one of the
reports has been returned to the
commanding officer for correction because a report must not
contain both marks of 2.0 and a recommendation of "promotable".
However,

the report is otherwise properly filed.

The opinion

k.

In his application,

Petitioner continues to state that

while at a private off-base party, Ms.
lips after she had consumed alcohol and this kiss was nothing
other then a  

He further states, in part, as

"peckrt.

S gave him a kiss on the

fol_lo_ws:

 

. 

. For reasons that I can only speculate, the woman

. 
claimed that it was I who initiated this kiss.
initiated invited or anticipated any kiss from Mrs.

 

’
I never
(S)

6

and believe that there is ample supporting evidence to
show that my conduct throughout the party was always
appropriate. 

. . . 

.

(2) her flirtatious behavior at the party as witnessed
(3) her husband's testimony at the investigation to

Petitioner believes that the IO inferred that Mrs. S's statement
may not be credible due to (1) her refusal to appear at the
hearing;
by others;
the effect that on the day after the party his wife said she
wanted to leave him and return
the party;
witnessed by others.

and (4) his appropriate behavior at the party as

He further states, in part, as follows:

  home because of the incident at

she began

Sometime later, I

. 

. 

. When I noticed (Mrs.

S's) behavior at the party, I

to show her that I was in no way

This conversation was witnessed by

I have continually been up-front and honest
the.'kiss  occur but that at the time

. 
had a private discussion with her during which I
discreetly told her that her actions were
inappropriate.
someone at the party. . . . . After this talk,
to act in what I would considered an appropriate manner
and I thought the issue was settled.
approached her in an open setting, the kitchen where
the food was located and in front of a bay window
facing the back yard,
upset with her and this is when the charged kiss
occurred.
that not only did  
it was fine with me and the reason I referred to it as
consensual.
It appeared to be a friendly peck, which
is also the reason I followed the kiss with a one-arm
I did not consider myself a "victim", as stated
hug.
by the general in his letter attached to my appeal
. 
kiss on her,
kiss . . . . . However,
because I did not predict her behavior and put myself
in this position that I was somehow at fault or because
a kiss simply occurred that this event constitutes
conduct unbecoming an officer and gentleman . . . . . What
the general failed to include was my statement to him
that she did not leave the kitchen immediately after
she kissed me but in fact we had a cordial
conversation.
not until  
witnessed by others as being intoxicated, accused us of
inappropriate conduct did Mrs.
or show any sign of being upset . . . . Of note, the
investigation revealed that
accusation on his interpretation of our facial
expressions while in the kitchen. . . . .

. until she raised the accusation that I forced a

when in fact   it was she that initiated the

I also stated to the general that it was

I disagree with the finding that

a friend of her husband and one

(S) ever leave the house
._ 

 

 

QMl 

(D) based his

. 

. 

. 

QMl (D),

_.

7

CONCLUSION:

The Board believes that the incident with Mrs. S

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
occurred essentially as described by Petitioner and that, in
to impose NJP for this offense was overkill. In
retrospect,
reaching this decision,
to the incident,
until they were confronted by
during the Article 32 investigation, and Petitioner'.&
record both before and after the NJP.
that he was not required to show cause why he should be retained
on active duty and has been extended on active duty until 2005.
This latter action suggests to the Board that the leadership in
the Chaplains Corps do not think that his behavior rose to the
level of misconduct.

and her apparent failure to accuse Petitioner

QMl D, her refusal to testify

the Board notes Mrs. S's behavior prior

Finally,

 

 

esicellent

the Board notes

In coming to the foregoing conclusion, the Board does not
specifically take issue with JAG's determination that NJP was
legally imposed upon  
some doubt as to whether his actions were so aggravated as to
constitute the disgraceful behavior required under UCMJ Article
133.
sufficient extenuation and
was not warranted.

the Board concludes that even if it was, there was
mitlgatlon  so that imposition of NJP

In this regard, the Board has

Petitioner.

However,

 

the Board concludes that all documentation concerning

Therefore,
the NJP should be removed from Petitioner's record.
documentation to be removed should not only include the report of
nonjudicial punishment dated 15 March 2000 and its enclosures,
but also the two fitness reports covering the period from

The

  2 0

February 1999 to 29 May 2000.
Petitioner should be considered by the next regularly convened
selection board as an officer who has not failed of selection for
promotion to LCDR (O-4).

RECOMMENDATION:

That Petitioner's naval record be corrected by removing all

a.
documentation concerning the NJP of 26 January 2000, including
but not limited to all documentation contained on Fiche 5 of
enclosure (2).

That the record be further corrected by removing the two
 

b.
fitness reports covering the periods 20 February 1999
January 2000 and 1 February to 29 May 2000.

to._u.

That the record be further corrected by inserting a

C .
memorandum in place of each of the removed reports containing

8

appropriate identifying data concerning the report; and stating
that the report has been removed by order of the Secretary of the
Navy in accordance with the provisions of federal law, may not be
made available to selection boards and other reviewing
authorities,
inference as to the nature of the report.

and that such boards may not conjecture or draw any

That the record be further corrected so that Petitioner will

d.
be considered by the earliest possible selection board convened
to consider officers of his category for promotion to lieutenant
commander as an officer who has not failed of selection-for
promotion to that grade.

That any material or entries inconsistent with or relating to

e.
the Board's recommendation be corrected,
expunged from Petitioner's record and that no such
material be added to the record in the future.

removed or completely
entries or

 

That any material directed to be removed from Petitioner's

f.
naval record be returned to the Board,
of Proceedings,
for such purpose,
Petitioner's naval record.

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

together with this Report

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

4.
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

$nd that the foregoing is a true and

ROBERT D. ZSALMAN
Recorder

1'

Acting Recorder

The foregoing report of the Board is submitted for your

5.
review and action.

Reviewed and approved:

A

AssistantGeneral

(Manpower 

And 

 Counsel
Reserve 

Af+.Drrc\