DEPARTMENT OF THE NAVY

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

Docket No: 5085-08
28 October 2009

 

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

  
 

Sub}: FORMER Bigs REVIEW OF

NAVAL RECORD
Ref: (a) Title 10 U.S.C. 1552

Enel: (1) DD Form 149°
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner filed
an application with this Board requesting that his naval record

be corrected by removing therefrom the report of nonjudicial .
punishment (NIP) dated 30 October 2006 and all related documents,

and reinstating him on. active duty.

 
 
   

2. the Board, consisting of Ms gai |
ee reviewed Petitioner's allegations™of er
POctober 2009 and, pursuant to its regulations, determined

on
that the corrective action indicated below should be taken on the

available evidence of record. Documentary material considered by
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

 

  

3, The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice, finds as

Eollows:

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 was commissioned as an ensign on 14 May 2004
raduation from the Virginia Military Institute (VMI).

ca. Petitioner received NUP on 40 October 2006 for failing to

obey a lawful general order or regulation, to wit OPNAV
Tnetruction 5370.2B, by engaging in an unduly familiar
relationship that did not respect. differences in grade or rank or
the staff-student relationship with Electrician's Mate Chief

: : an enlisted person and Petitioner's
Anseructor. The punishment consisted of a punitive Letter of
reprimand, which was i4geued on 31 October 2006. Petitioner did
not. appeal the punishment or the finding that he had committed

the charged offense.

 
  
   

d. The report of the command investigation upon which the
charged violation was based is not contained in the available
records; however, Petitioner submitted a copy of a written

statement made by aS: which she related that Petitioner
had approached her a ass and told her he was going to ask
a question involving “a bet”. She told Petitioner that if he was
going to “ask me something stupid, not to ask”. Petitioner then
stated that he had two tickets to the Red Sox game. =
pointed to her wedding ring and told Petitioner to get away m
her. A lieutenant approached her and asked what had happened. She
replied that Petitioner had just asked her out, and told the
lieutenant that he needed to “take care of” his junior officers.
" Wr also related that on a previous occasion he said to her
Geeeoeeoing to Wisconsin together”, to which she replied “if we
go, I’11 probably bring my husband", and that during a class
discussion, Petitioner described ‘a woman officer as “hot”.

   
   

e. On 9 November 2006, in a report to the Commander, Navy
Personnel Command, Petitioner’s commanding officer recommended
that Petitioner not be required to show cause for retention in
the Navy. In a forwarding endorsement, the Commander, Naval
Personnel Development Center, also recommended that Petitioner
not be required to show cause for retention.

f. On 15 February 2007 the Commander, Navy Personnel
Command, advised Petitioner that the Show Cause Authority had
determined, after reviewing the record of NJP of “28 September
2006", that there was “sufficient evidence of record to separate”

him from the naval service. ‘He also advised Petitioner that he
was indebted to the U.&. Government in the amount of $49,559.49
due to his “having received advanced educational assistance to
attend the United States Naval Academy”. Petitioner was
discharged by reason of misconduct {other) on 30 June 2007 with a
discharge under honorable conditions.

g. Petitioner contends, in effect, that he did not violate
the provisions of OPNAV Instruction 5370.2B because there was no

personal and/or unduly familiar relationship between himself and

= that he would not have been charged with
‘farnicacion if - had been a male; and that his conduct

merge cts

did not call into his objectivity as a xiii
superior. He also contends that his case was conPisecdwrti
of another officer, as he had received NJP on 30 October rather
than 28 September 2006 and attended VMI rather than the Naval
Academy. He believes that as the personal statement and other
documents he submitted in rebuttal to the notification of his
proposed separation are not filed in his record, as is required
by applicable regulations, it is clear that the Secretary of the
Navy had not considered those documents prior to directing that
he be discharged.
CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants partial
relief.

The Board finds that Petitioner did not demand trial by court-
martial or appeal the nonjudicial punishment that was imposed on
him. Although the Board igs unaware of the specific violation of
OPNAVINST 5370.2B he committed, the actions described by EMC
2 standing alone, are sufficient to establish that a

eon of that instruction occurred, i.e., he “asked out” a
Female enlisted member. While it is unlikely that he would have
received NJP had ees: a male, asking her out is
significantly dif tl ‘om offering to share tickets with a
male petty officer with whom there was no appearance and/or
expectation of pursuing a possible romantic relationship, as
there was with In addition, iq Wie initial
response to Petiti m™that he not do ameertrice stupid, and her .
later admonition to a lieutenant that he needed take care of his
junior officers, although perhaps warranted, were disrespectful.
Her comments were prompted by conduct that was clearly 7
prejudicial to the good order and discipline of the service and
unbecoming an officer, in violation of Articles 134 and 133 of.

the Uniform Code of Military Justice, respectively.

  
 
 

Although it appears that the separation notification was prepared
using the “cut and paste” method, the Board was not persuaded

that Petitioner’s case was confused with that of another officer

case. The fact that the documents Petitioner submitted in
rebuttal to the separation action are not filed in his naval
record is insufficient to establish that those documents were not
reviewed by the Secretary. In addition, as Petitioner did not
submit copies of the documents for the Board's review and
consideration, it cannot determine whether or not material error
would. haye occurred had the documents not been forwarded to the
Secretary.

Notwithstanding the foregoing, the Board concludes that
Petitioner’s actions did not warrant his separation from the Navy
by reason of misconduct with a general discharge. Accordingly, it
finds the existence of an injustice and recommends the following
corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he
was discharged from the Navy on 30 June 2007 by reason of
unqualified resignation, with an honorable discharge, vice by
reason of misconduct with a general discharge.

b. That no further relief be granted.
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 . AMES R. Zon 108

Recorder Reting Recorder

5. The foregoing action of the Board 4g gubmitted for your

review and action.
W

. DEAN PFEL

O™N

Reviewed and approved:
fchime AEC (: Wel
l~5~ OF