DEPARTMENT OF THE  NAVY 

BOARD  F O R C O R R E C T I O N   OF  NAVAL  RECORDS 

2  N A V Y A N N E X  

WASHINGTON  D C   2 0 3 7 0 - 5 1 0 0  

HD: hd 
Docket No:  04896-03 
24 October 2003 

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. 

You  requested, in effect, removal of  the nonjudicial punishment  (NJP) of  5 November  1994, 
removal of your failures of  selection by  the Fiscal Year 97 and 98 Active Line Lieutenant 
Commander Selection Boards, cancellation of your discharge from the Regular Navy  on 
1 May  1998, and retroactive restoration to active duty. 

A three-member panel of  the Board  for  Correction of  Naval  Records, sitting in  executive 
session, considered your application on 23 October 2003.  Your allegations of error and 
injustice were reviewed  in accordance with administrative regulations and procedures 
applicable to the proceedings of this Board.  Documentary material considered by  the Board 
consisted of  your application, together with all material submitted in  support thereof, your 
naval record  and applicable statutes, regulations and policies.  In  addition, the Board 
considered the advisory opinion furnished by  the Navy  Personnel Command dated 
15 August 2003, a copy of  which is attached.  The Board also considered your undated letter 
received on  7 October 2003. 

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.  In  this connection, the Board  substantially concurred with  the comments contained 
in  the advisory opinion. 

The Board was unable to find the contested NJP  was unsupported by  facts.  The Board  found 
that since you  were attached to or embarked on a Navy  vessel (the USS  DWIGHT D. 
EISENHOWER), you  had  no right to demand a trial by  court-martial.  In his endorsement on 
your appeal of  the NJP,  the Commanding Officer, USS  DWIGHT D.  EISENHOWER  stated 
he disapproved your request for a court-martial because he felt your offenses were 
appropriately handled at NJP.  The Board was unable to find your case should have been 

referred to a court-martial.  Since the Board  found insufficient grounds to remove the NJP, 
and it found the report of your board  of  inquiry was properly not included in your record, it 
had  no grounds to remove your active duty failures of  selection to lieutenant commander,  set 
aside your discharge from the Regular Navy,  or restore you  to active duty. 

In view of  the above, your application has been  denied.  The names and votes of  the 
members of  the panel will be furnished upon request. 

It is regretted that the circumstances of  your case are such that favorable action cannot be 
taken.  You  are entitled to have the Board  reconsider its decision upon  submission of new and 
material evidence or other matter not previously considered by  the Board.  In this regard, it is 
important to keep in  mind  that 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. 

Sincerely, 

Enclosure 

DEPARTMENT OF THE NAVY 

NAVY fZRSONNEL COMMAND 

S720 INTEGRITY DRIVE 

MILLINGTON TN 38056-0000 

5420 
Ser 801 
15 Aug 03 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION 

OF NAVAL RECORDS 

Via :  Assistant for BCNR Matters, PERS-OOZCB 

Subj : FORMBE 

Ref: 

(a) MCM, Part V 

(b) SECNAVINST 5212.5D 

Encl:  (1) BCNR memo 5420 PERS-OOZCB of 25 Jun 03 

1.  We are returning enclosure (1) with the following 
observation and the recommendation that former- 
petition be denied  The following information is provided 
concerning 
of Inquiry (BOI) . 

non- j udicial punishment  (NJP) and Board 

a.  On 5 November 1994. -received 

NJP, in 

accordance with reference (a), for violation of the UCMJ, 
Article 134, Fraternization with Subordinates (four 
specifications), and Article 107, False Official Statement.  The 
Commanding Officer, DWIGHT D. EISENHOWER  (CVN 69) found that 
over a 6-month period SNO wrongfully fraternized with several 
female subordinates and falsified an official statement 
certifying that a female petty officer passed an oral board when 
she did not.  DWIGHT D. EISENi-iuWr;K recommended t
show cause for retention. 

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a

v

b.  The applicable procedure for objecting to an adverse 

finding at Captain's Mast is to formally appeal the 
determination to the NJP Authority's  immediate superior in 
command (ISIC).  The ISIC is vested with the authority to set 
aside findings of guilt and/or punishment imposed.  In 
case, his CO imposed NJP after finding that 

-s 

fraterniz 
official statement. 
punishment as unjust.  Commander, Cruiser-Destroyer Group EIGHT 
reviewed and denied his appeal.  The report of NJP. to include 
the punitive letter of reprimand. was made part o
w
permanent officer record. 

ted personnel and falsified an 
ppealed the findings and his 

 

sub j :  F

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2.  Findings from NJP and BOI hearings are separate and distinct 
processes--not intended to bind or over-turn one another.  The 
purpose of NJP is to provide commanders with the means to punish 
minor disciplinary infractions and preserve good order and 
discipline within their units.  BOIs are non-punitive hearings, 
convened to review an officer's fitness for further naval 
service.  The Board is neither bound by the results of Captain's 
Mast, nor empowered to review as to whether the finding at Mast 
was just or the punishment imposed proportionate to the offense 
committed.  If a BOI does not find misconduct, it does not 
invalidate the findings from Captain's Mast nor can it require 
that an NJP be removed from an officer's official record. 

- 

- 

case are not 

4 .   The findings of the POI in- 
available for review as the records were retained and destroyed 
in accordance with reference (b).  Based on historical procedure 
we can hypothesize that the BOI findings were not adverse.  At 
the time of his BOI, it was customary to only file BOI findings 
in an officer's record if the findings included a recommendation 
to discharge the officer.  Otherwise, the findings were retained 
and destroyed per reference (b). -could 
have exercised 
his privilege to request the BOI findings be filed in his record 
or to provide a copy of said findings to the presidents of the 
selection boards which considered his record.  The BOI findings 
not being included in his official record did not make his 
record incorrect, nor did it disadvan.tage him during the 
selection boards.  Therefore,- 
"dismissed all charges and corrected his record" is inaccurate 
as it was not within their authority. 

assertion that his BOI 

5 .   Based on the aforementioned facts, -etition 
without merit. 

is 

Officer Career 
Progression Division