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NAVY | BCNR | CY2006 | 09003-06
Original file (09003-06.rtf) Auto-classification: Denied
                           DEPARTMENT OF THE NAVY
          BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 HD:hd
Docket No. 09003-06
9 March 2007

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 reversal of the 22 September 2005 vacation of suspension of your punishments, awarded at nonjudicial punishment proceedings, of reduction from LN1 (pay grade E-6) to LN2 (pay grade E-5) and forfeiture of one half month’s pay for two months.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 8 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. In addition, the Board considered the advisory opinion furnished by the Office of the Judge Advocate General dated 27 December 2006 with enclosures, a copy of which is attached. The Board also considered your undated letter with enclosures.
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. 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 mmmd 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,


W.       DEAN PFEIFFER
Executive Director


Enclosure
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DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL
1322 PATTERSON AVENUE SE SUITE 3000
WASHINGTON NAVY YARD DC 20374—5066


         INREPLYREFERTO
          1070    
         Ser 13/4BC12192.06
         27 Dec 06

 From:    Deputy Assistant Judge Advocate General (Administrative Law)
 To:      Chairman, Board for Correction of Naval Records  -

 Subj:    REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE OF
Ref:     (a) Your ltr    Docket No. 09003-06 of 26 Oct 06
End:     (1)      Legal Analysis
         (2)      DASN(MPP) ltr of 13 Dec 06

 1.       This responds to reference (a), your request for our comments and recommendation in the case o

2.       Issues .

 a.       Should the nonjudicial punishment vacation proceedings in petitioner’s case be reversed, resulting in her reinstatement to the rank of E-6 and in her receipt of credit for forfeitures?
b.       Should her request for Admiral’s Mast be forwarded?
3.       Short Answers .

 a.       No. Both petitioner’s commanding officer and the general court martial convening authority acted well within the scope of their discretion in vacating, and upholding the vacation of, petitioner’s suspended nonjudicial punishment. Because their actions were supported by fact and consistent with applicable laws and regulations, correction of petitioner’s naval record is not recommended.
b.       Though not required by regulation to do so, the general court martial convening authority indicated that it would act upon a properly submitted request for Admiral’s Mast. The issue may be moot, however, as petitioner has returned from deployment.
4.       Discussion . Enclosure (1) is the detailed legal analysis provided to the Deputy Assistant Secretary of the Navy (Military Personnel Policy) for her use in reaching a determination with respect to petitioner’s complaint of wrongs, which is identical in scope and content to this BCNR petition. Enclosure (2) is DASN(MPP)’s action on the case.
My point of contact is




FOR:     DEPUTY ASSISTANT SECRETARY OF THE NAVY (MILITAR Y PERSONNEL POLICY)
FROM:    Deputy Assistant Judge Advocate General (Administrative Law)
SUBJECT:         Co m pla in t of Wro n gs Under A rt icle 138, UCMJ, ICO

         • Complainan. as assigned to Naval Mobile Construction Battalion Two Thur (NMCB-24) and deployed to Iraq at the time of the alleged wrongs.
•        Respondent . S N, was her Commanding Officer.
•        Complaint . Complainant alleges that:
(1)      On September 22, 2005, respondent improperly vacated suspension of complainant’s earlier nonjudicial punishment.
(2)      On or about September 23, 2005, respondent improperly refused to forward complainant’s request for admiral’s mast to the Secretary of the Navy.
(3)      She did not receive Notification of Action to Vacate Suspension from the respondent.
(4)      Several attempts to receive a copy of the Preliminary Inquiry Officer’s investigation, which preceded the vacation hearing, were ignored.
•        Relief Requested . Complainant requests:
(1)      Reversal of vacation proceedings, reinstatement to E-6 and credit for all forfeitures.
(2)      That her request for admiral’s mast be forwarded for action to the final approving authority.
•        GCMA’s Action . The general court-martial authority (GCMA), Commander, FIRST Naval Construction Division, determined that a proper vacation hearing was conducted and that vacation of her suspended punishment was justified. He therefore denied complainant’s request for relief as to the vacation proceedings.
SUBJECT:         Complaint of Wrongs Under Article 138, UCMJ, ICO
•        With respect to complainant’s request for admiral’s mast, the GCMA determined that the request should not have been denied at the command level. It should have been returned to complainant with instructions for the proper routing procedures. The GCMA advised complainant to re-submit her request for admiral’s mast through the proper chain of command.
•        Background . In May 2005, complainant, then an E-6 or First Class Petty Officer, was awarded nonjudicial punishment for a violation of UCMJ Article 92 (Failure to obey an order or regulation) for fraternizing with a master chief petty officer. She was awarded a reduction in rate and forfeiture of one-half of a month’s pay for two months, both suspended for a period of six months.
•        In September 200 ~ from a separate command, visited complainant at NMCB-24 to find out why certain Sailors’ security clearances had been removed. (A master gunnery sergeant is an E-9; a staff sergeant is an E-6.) COMFIRSTNCD ltr 5819 Ser NO2J/l20 of April 11, 2006 (GCMA action ltr), 1.
•        Complainant told the staff sergeant that she had been relieved from her security position and that he would need to speak wit Complainant went on to d oesn’t ha e a clue.” Investigation of September 22, 2005, End. (13) (Statement fro m p. 3. At another point, complainant characterized her statement slightly differently, to the effect tha t ad no clue as to what he was doing.” Complainant’s Request for Redress of October 20, 2005, if.
•        In his statement to the investigating office “She [ referring to complainant] then explains how she is not the Security Mana ger and she is his Assistant. LN1 [complainant] then starts telling us how they have [sic] working for some 28 year old kid who doesn’t know anything (shit) about this job and gave me the impression of how dare they have her working for someone that has no experience in that field. She also explained how she was a GS 12 and does this for a living.” Investigation of September 22, 2005, End. (8) (Statement from SSGT Smith), p. 1.
         •        Respondent directed that the matter be investigated. The investigating office concluded that complainant had violated Article 89 (Disrespect toward a superior commissioned officer) by making the comment included i n sta tement.
2
SUBJECT:         Complaint of Wrongs Under Article 138, UCMJ, ICO

•        Respondent held a hearing on September 22, 2005 and vacated the suspended nonjudicial punishment. Complainant was allowed to read the investigation report
 prior to the hearing s econd endorsement o f SN, ltr of Decem be r 23, 2005. She requested a copy of the investigation while the command was in an operational status. When the records were returned to the Readiness Support Site, a copy of the investigation was forwarded to her. Id .
•        Complainant takes the position is that the elements of Article 89 were not m et as not present when she made the comment at issue, she did not direct her comment toward him and the comment was made in the context of a purely private conversation. Complainant’s rebuttal statement of March 14, 2006.
•        Analysis . The Manual for Courts-Martial United States (MCM), Part V, 6, provides that a nonjudicial punishment authority may suspend the punishment. Unless otherwise stated, the suspension includes a condition that the member not violate any punitive article of the UCMJ. Article 89, UCMJ, provides: “Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.” MCM, Part IV, l3c, includes the following comment:
[]Disrespect. Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense.
Presence. It is not essential that the disrespectful behavior be in the presence of the superior, but ordinarily one should not be held accountable under this article for what was said or done in a purely private conversation.
•        Complainant admits that she stated that her immediate superior, a commissioned officer, “doesn’t have a clue as to what he is doing.” The tenor of the comment is disrespectful in that it “detracts from the respect due the authority and person of a superior commissioned officer.” Certainly it is “denunciatory language.”
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SUBJECT:         Complaint of Wrongs Under Article 138, UCMJ, ICO
•        Complainant’s comment was not in the context of a “purely private conversation.” She made the comment in her office, during working hours, in a work-related discussion with two senior enlisted Marines from another command who were visiting on official business. They were not friends or colleagues.
•        As 1 3c, Part IV, MCM, makes clear, there is no requirement tha present at the time the disrespectful words are uttered. Consequently, the GCMA acted within his discretion in refusing to reverse the vacation proceedings, reinstate complainant to E-6 and give her credit for all forfeitures.
•        The GCMA found that complainant’s request for admiral’s mast should not have been denied at the NMCB-24 level and that if she were to re-submit her request through the proper channels, she would achieve the desired goal. While the GCMA may grant complainant an audience, there is no regulatory requirement to do so. U.S. Navy Regulation 0820c states that commanding officers shall “afford an opportunity, with reasonable restrictions as to time and place, for the personnel under his or her command to make requests, reports or statements to the commanding officer, and shall ensure that they understand the procedures for making such requests, reports or statements.” There is no parallel provision with respect to flag officers.
•        Conclusion . The GCMA’s actions were correct in fact and law and not an abuse of discretion.
RECOMMENDATION:  The GCMA’s actions are supported by the facts and are consistent with applicable laws and regulations. Respectfully recommend you approve the GCMA’s final action by signing TAB A.

 COORDINATION:    None.
Attachments:     As stated.
Prepared by
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DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
(MANPOWER AND RESERVE AFFAIRS)
1000 NAVY PENTAGON
         WASHINGTON, D.C. 20350-1000     
                                            
                                                     





From:    Deputy Assistant Secretary of the Navy (Military Personnel
Subj:    COMPLAINT OF WRONGS H INDER ARTICLE 138, UCMJ
         
         Ref:     (a)      JAGMAN, Chapter III
                  (b)      Your complaint of 23 Dec 05
                  (c)      COMFIRSTNCD ltr 5819 Ser NO2J/120 of 11 Apr 06

 1.       In accordance with reference (a), this letter is in response to your complaint of wrongs, reference (b), under Article 138, Uniform Code of Military Justice, against Commander

2.       The general court-martial authority (GCMA), Commander, FIRST Naval Construction Division, reviewed your complaint in accordance with reference (a), found it to be without merit and denied relief. After careful review, I concur with the findings and actions of the GCMA, as communicated to you by reference (c); therefore no further action will be taken on your complaint.
3.       This decision constitutes final action on your complaint. You may petition the Board for Correction of Naval Records to remove or correct any error or injustice you believe exists in your Naval records.




Copy to:
COMFIRSTNCD
NCR THREE ATLANTA GA
NMCB-24

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