DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

TRG
Docket No: 8967-05
29 March 2007

  

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 20 March 2007. 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.

months of active service on a prior enlistment and served in an
excellent manner for more than 10 years. In 2004, you were
selected for chief petty officer. You were subsequently frocked
and authorized to wear the uniform of a chief petty officer. At
that time, you were in charge of the flag mess for Commander,

Carrier Strike Group TWO (CSG2) on board USS THEODORE ROOSEVELT
(CVN 71).

of a sexual nature; dereliction of duty by failing to maintain a
work environment that was free from sexual harassment; and
indecent assault~ You plead guilty to sexual harassment and
dereliction ofduty, but not guilty to indecent assault. The
punishment ipfposed was a punitive letter of reprimand.
In your appeal of the NUP, you contended that the investigation
was done incorrectly and that witnesses were coerced into making
statements. In his endorsement on your appeal CSG2 analyzed the
evidence concerning the charge of indecent assault and stated
that he believed a preponderance of the evidence supported his
finding of guilty. He also pointed out that you plead guilty to
the other charges and a punitive letter of reprimand constituted

lenient punishment since he could have imposed a reduction in
rate and forfeitures of pay. Subsequently, your appeal was
denied by the Commander, Second Fleet.

In the performance evaluation for the period 16 September 2004 to
11 April 2005, you were assigned adverse marks of 1.0 in four
categories and your recommendation for promotion to chief petty
officer was removed. On 11 May 2005, CSG2 sent out a message to
to ensure that all concerned were aware that your advancement
recommendation had been withdrawn.

On 11 April 2005, you were notified of separation processing by
reason of misconduct due to commission of a serious offense. On
10 June 2005 an administrative discharge board (ADB) was convened
to consider your case. During the ADB, several admirals for whom
you had previously worked testified by telephone concerning your
outstanding performance of duty. Other individuals testified
about the sexual harassment and indecent assault charges. After
deliberations, the ADB found by a two-to-one vote that you had
not committed misconduct due to commission of a serious offense.
The majority's rationale for its decision cited inconsistencies
in the testimony pertaining to the allegations of physical
contact, the good character of the witnesses who testified in
your behalf, your long and faithful service, and the fact that
eight of nine witnesses recommended your retention in the Navy.
The dissenting member concluded that the preponderance of the

evidence showed your guilt.

In the detaching evaluation from CSG2, the individual trait
average was 3.0 and you were recommended for promotion and
retention in the Navy. The evaluation comments state that you
had shown progress and worked hard to overcome personal and
professional obstacles. In a concurrent report from another
command for the same period, the ITA was 4.43 with laudatory
comments and you were recommended for early promotion.

On 30 October 2005, you reported to the USS CARR (FFG 52) and
shortly thereafter applied to the Board requesting removal of a
performance evaluation and advancement to chief petty officer.
You pointed out that your performance of duty had been
outstanding and alleged that an injustice occurred due to
improper and inconsistent application of rules, regulations and
procedures.

During the preparation of your case, the Board requested the
documentation concerning your case and CSG2's comment on your
application. In his response, CSG2 stated, in effect, that you
had admitted your guilt to most of the charges, and the NUP was
properly conducted and reviewed. Concerning the ADB, he pointed
out that the majority had ignored the testimony showing your
guilt and your admission of guilt. He conceded that the
evaluation at issue was erroneously prepared and indicated that
action would be taken to file a corrected evaluation but

strongly recommended that your application for advancement to
chief petty officer be denied.

On 23 February 2006, the Director, Air Warfare Division (OPNAV
N78) forwarded a recommendation in your behalf stating, in part,
as follows:

(He) was the Leading Petty Officer of my mess when I
was Commander, Carrier Strike Group TWO. During this
time he was the. model Sailor for his juniors and his
peers. He proved himself to be a superior Sailor, a
great leader and a valuable member of my staff. ,

I supported (him) before his board and am aware of
the details surrounding his case. I believe a review
of his package is warranted. ... Return his Sailor to
Khakis as soon as possible. I would want (him) to run
my mess again.

Subsequently, the Board obtained three advisory opinion from the
Navy Personnel Command (NPC). The Head of the enlisted Career
Progression Branch concluded that the recommendation for
advancement was correctly withdrawn. Concerning the performance
evaluation, the NPC Records Examining Section concluded that it
was properly filed and should not be removed, and points out that
you had two years to submit a statement in response to the
evaluation. Finally, the Enlisted Performance and Separation
Section in NPC noted that a finding of no misconduct by an ADB
precludes separation in most cases, but does not require a
commanding officer to set aside an NJP imposed for the same
misconduct. The opinion concluded by stating that given the no
misconduct finding and the last performance evaluation in the
record at the time of review, it had no objection to any relief
that would be deemed appropriate by the Board.

In your rebuttal to the advisory opinion, you continue to Claim,
in effect, that the performance evaluation was improper and
should not have been used to withdraw your recommendation for
advancement and, absent the evaluation, you would have reached
your promotion date prior to the submission of the corrected
evaluation. You have also submitted character references which
Support your request to be promoted to chief petty officer.

It is clear to the Board the evidence establishes that sexual
harassment occurred in a work station under your charge and that
you participated in that harassment. Accordingly, the NUP was
proper and there was no abuse of command discretion.

The errors made in the performance evaluation are relatively
minor and are not considered sufficient to invalidate the removal
of your recommendation for advancement. Accordingly, the Board
substantially agreed with the comments contained in the advisory
opinion concerning this matter.

Although, a majority of the ADB found that you had not committed
a serious offense, the Board believed that the Majority's intent
in making this finding was to retain you in the Navy. In this
regard, the Board noted that you admitted to committing offenses
both at NJP and during your testimony at the ADB. Therefore, you
were fortunate that you were allowed you to remain in the Navy.
Finally, you should be aware that the findings of the NUP and the
ADB are completely separate actions and there is no requirement
for identical findings. In view of the foregoing, the Board
concludes that you should not be advanced to chief petty officer.

_ Accordingly, 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,

Executive Diyecto