DEPARTMENT OF THE NAVY

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

 

SMS
Docket No: 6710-08
23 September 2008

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

 

Subj: REVIEW OF NAVAL RECORD OF

   

Ref: (a) 10 U.S.C. 1552

Fnel: (1) Case Summary with advisory opinion
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a member
of the Navy Reserve, applied to this Board (BCNR) requesting the
record be corrected to show that he was not discharged on

30 September 2005, but continued to serve on active duty and was
authorized duty under instruction in the nurse anesthesia program
that he is currently enrolled in with a completion date of May 2009.

ot gat Rai

 
 
 

> The Board, consisting of 7 "iii Re and

Mr .3 pPereviewed Petitioner's allegations o error and injustice on
3 September 2008, and pursuant to its regulations, determined that
the partial 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 follows: |

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.

c. On 10 December 1996, Petitioner was appointed an ensign in the
Navy Reserve after completion of the Naval Reserve officer Training
Corps (NROTC) Nursing Program and after almost ten years of prior
enlisted active service in the Navy. During the period 12 April 1997
to 3 July 2001, he consistently received performance evaluations for
his duties as a nurse that rated him as meeting or being above
standards and he subsequently accepted a permanent appointment as a
lieutenant in the Navy Reserve and continued to serve on active duty.
d. On 7 August 2001, Petitioner entered the Navy Nurse Corps
Anesthesia Program at Georgetown University (GU) and acknowledged the
Naval School of Health Science's (NSHS) honor code as well as the GU
honor code. During April 2002, GU's Program Director received an
anonymous letter alleging a cheating ring that included Petitioner,
another Navy officer, and two civilians. GU initiated an

investigation into seven allegations of violations of academic
integrity and he retained civilian counsel.

e. On 28 June 2002, the Chief of Naval Operations directed the
permanent appointment of Petitioner in the Regular Navy as a Nurse
Corps Officer, but there is no evidence in the record to show that an
officer appointment and oath of office was executed.

f. On 1 August 2002, Petitioner completed Phase I of the Nurse
Anesthesia Program at GU and reported to NSHS, Portsmouth, Virginia
to complete Phase II. On 14 November 2003, GU dismissed Petitioner
from the program after finding him guilty of four of seven
allegations as indicated below:

(1) GU concluded that his level of infringement of academic
integrity standards was minor regarding distribution of a computer
Gisk containing unauthorized material in which he admitted
unknowingly doing so and then informing the class not to use.

(2) GU concluded that evidence substantially supported the
allegation that he cheated on a pharmacology paper.

(3) GU found that the evidence substantiated the allegation
that he cheated on a pharmacology midterm blackboard exam.

(4) GU found that the evidence created a strong likelihood
that he violated academic integrity by sharing unauthorized material
with another student.

g. Petitioner continued to serve as a nurse at the Naval Medical
Center in Portsmouth, Virginia and subsequently appealed GU's
decision, but his appeal was denied by GU based upon lack of
additional evidence and no errors of procedure.

h. On 2 June 2004, Petitioner received a performance evaluation
for his performance of duties as a staff nurse at the Navy Medical
Center in Portsmouth, which stated in essence that he provided

advanced education and training of medical department personnel and
extensive nursing care to patients as a member of the Recovery Room

Team. The evaluation rated his performance as meeting standards and
promotable.

i. On 29 June 2004, a Judge Advocate General (JAG) investigation
concluded that the primary source of the investigation came from
documentation provided by GU and that many witnesses' statements were
Similar, but individual events did not speak directly to the
allegations and left much to inference. The JAG investigation opined
that GU adhered to its policy and procedures; any one incident
involving the questionable behavior could be discounted as
coincidence; and the overwhelming circumstantial evidence indicated
that Petitioner violated the NSHS Code of Honor and GU academic
integrity policy. The investigating officer concluded by
recommending a Board of Inquiry (BOI) to show cause, Article 15,
Letter of Reprimand, and offered Petitioner an opportunity to resign
his commission.

j. On 8 July 2004, Petitioner was charged with conduct unbecoming
an officer by wrongful and dishonorable receipt of unauthorized test
information and distribution of that information to other students,
and willful and wrongful violation of the NSHS Honor Code and GU
policy on academic integrity.

k, On 27 September 2004, the Navy Personnel Command notified
Petitioner that the Commandant of Naval District Washington was
requested to convene a BOI requiring him to show cause for retention
in the naval service due to misconduct and substandard performance of
duty, and if separated the least favorable characterization of
service could be an other than honorable. On 14 October 2004,
Petitioner was detailed a military defense counsel in Norfolk,
Virginia, and on 15 October 2004, he elected to have his case heard
by a BOL. During January 2005, he was assigned a replacement
military defense counsel located at the Washington Navy Yard and they
subsequently spoke on the phone on two occasions.

1. On 31 January 2005, Petitioner received a performance
evaluation for his performance of duties as a nurse at the Navy
Medical Center in Portsmouth, which stated that he was a highly
qualified professional nurse who performed his duties in an effective
and competent manner in which he planned, directed, and executed
nursing care in the Post Anesthesia Care Unit. The evaluation
consistently rated his performance as above standards and recommended
promotion.

m. On 14 February 2005, Petitioner's military defense counsel
requested a continuance of his BOI on the basis that he received
untimely government disclosure of evidence on 10 February 2005, as
well as the government counsel's intention to call a new witness.
His military defense counsel further stated that neither he nor the
civilian defense counsel had the opportunity to speak with the
government witness or review the recent government disclosure. The
government counsel recommended disapproval of the request for
continuance on the basis that Petitioner's military defense counsel
was assigned in December 2004, the civilian counsel should have been
familiar with all of the developments and issues, and the military
defense counsel received all documents from the recorder aS soon as
possible. On 17 February 2005, the Commandant of Naval District
Washington denied the request for continuance and issued a BOI member
appointment letter, which directed the BOI to convene the next day.
n. On 18 February 2005, the BOI convened at the Washington Navy
Yard with Petitioner's military and civilian defense counsel present.
The transcript of the BOI shows that his counsel requested a
continuance, which was denied by the President of the BOI. The BOI
audiotapes reveal that his military defense counsel requested a
continuance due to his lack of preparation time, specifically, he
stated that he was assigned as Petitioner's counsel during January
2005, did not meet with him until the morning of the BOI, and the
government counsel provided the defense counsel with discovery on
10 February 2005. The BOI audiotapes further reveal that the
government counsel stated that the military defense counsel was
assigned during December 2004, but the defense counsel stated that
was incorrect and the Commandant of the Naval District Washington was
provided incorrect information by the government counsel. The BOI
audiotapes reveal that proceedings were directed to continue after a
30 minute break and both the government and civilian defense counsel
focused on the bases for show cause throughout the remainder of the
proceedings. The BOI report of findings and recommendations
worksheet shows that the BOI found him guilty of misconduct due to
commission of a serious offense due to failure to obey a lawful
order, misconduct due to conduct unbecoming an officer, and two
instances of substandard performance of duty. Page 2 of the BOI
findings worksheet provided two options regarding separation, which
states, in part, as follows:

...that the [Petitioner] be separated from the naval
service on the basis of [cite basis]

or

...that none of the reasons specified are supported
by sufficient evidence presented to warrant separation
for cause and the case is, therefore, closed.

{1) The worksheet shows that the BOI unanimously voted that he
be separated from the naval service due to violations of Article 92
and 133, with an honorable characterization of service.

(2) The BOT audiotapes reveal that the members were not
advised by the recorder, government counsel or defense counsels
during preliminary matters, or during opening or closing statements
that they had the option to recommend retention if misconduct were
found. The BOI audiotapes also reveal that the president of the BOI
read the findings and recommendations just as the members voted and
there was no questioning or argument regarding an option to retain
him if misconduct were found.

Oo. On 3 March 2005, a member of the BOI submitted a statement to
Petitioner's defense counsel in which he stated in essence that it
was likely that the BOI would have recommended retention if they knew
that was an option. On 9 May 2007, another member of the BOI
submitted a statement upon request by BCNR in which he stated in
essence that he did not know that retention was an option and if the
BOL's option had been made clear to him, he believes that he would
have voted to keep him in the service, and would have also
recommended probation. On 21 May 2007, the senior member of the BOT
submitted a statement upon request by BCNR and stated in essence that
she did not recall knowing that a member could be retained on active
duty even after being found guilty of such misconduct. She further
stated that she did not believe that she was clear on that and dia
not think the members of the BOI were given that option and if their
option to retain him had been made clear to her, she would not have
supported that option.

p. On 17 March 2005, the Navy Personnel Command responded to a
congressional inquiry regarding the BOI's recommendation, which
stated in essence that recourse may be available regarding the BOT
process and the final decision concerning any perceived errors by the
BOI and whether its decision should be overturned rests with the
Commandant of the Naval District Washington.

q. On 18 May 2005, Petitioner's civilian defense counsel
submitted a rebuttal and letter of deficiency to the Commandant of
the Naval District Washington, which states in part, as follows:

a memorandum for the Record prepared by [BOI
member], clearly demonstrates, the members of
[Petitioner's] BOI did not properly understand that
they had the option of recommending that [Petitioner]
be retained in the naval service despite their
findings that he had been guilty of certain
misconduct and substandard performance. ..and
that had the members understood that such an option
was available, "it is likely the Board would have
voted" to recommend retention...

Necessary and proper continuance requests in
connection with [Petitioner's] BOI were erroneously
denied...A continuance was necessary for several
reasons. First, [Petitioner's] permanent duty
station and the location of his initial detailed
defense counsel and fourteen character witnesses.
Secondly, because [his current detailed defense
counsel] had been recently detailed to this
complex case and had not met with [Petitioner],
he was unprepared and so stated. Thirdly,
[Petitioner] did not receive notice of the
hearing from his Commanding Officer...Lastly,
discovery was seriously lacking. A week prior

to the BOI, part of the discovery was provided,
but to [current detailed defense counsel]

only, not to civilian defense counsel. On the
morning of the board [BOI], defense counsels
Tu.

learned, for the first time of the written
evidence the Recorder intended to submit
and received the remainder of the discovery...

...The decorum of [Petitioner's] BOI was chaotic
and violated principles of fairness and justice...
an expert government witness who had no personal
knowledge of the facts of the case, was allowed
to make a statement that he had complete trust
in Georgetown's report. Also, without being
qualified as an expert witness...an assistant to
the Recorder, was allowed to testify to the
accuracy and software intricacies of a "Copy
Catch" computer program during her examination
of another witness; after defense objection,

the Board members continued to ask her questions
about how the program worked. Time and again,
the Presiding Officer trampled the rights of
[Petitioner] while protecting [the assistant

to the Recorder], a law student, from the
objections of defense counsel...

...To remedy the substantial deficiencies that
occurred at [Petitioner's] BOI, he...respectfully
requests that you either suspend the recommendation
for separation or refer the case to a new BOT.

On 3 June 2005, a BOI was convened for the fellow Navy officer

dismissed from GU due to his involvement in the same incident. His
BOI found no misconduct and unanimously recommended retention as
provided by their report of findings and recommendations worksheet.
Page 2 of this BOI report of findings and recommendations worksheet
provided two options regarding separation, which states, in part, as
follows:

Ss.

...that he be separated from the naval service on the
basis of [cite basis]

or

...that none of the reasons specified are supported by
sufficient evidence presented to warrant separation for
cause and the case is, therefore, closed. (The Board
May make this recommendation where the Board has found
that one or more bases for separation was/were supported
by a preponderance of the evidence, but finds that
separation is not warranted.)

On 6 June 2005, the President of the BOI submitted the BOI

record of proceedings to the Commander of the Navy Personnel Command
via the Commandant of the Naval District Washington, the convening
authority who disapproved the military defense counsel's request for
continuance. On 15 June 2005, the Commandant of the Naval District
Washington endorsed the BOI record of proceedings, in part, as
follows:

...1 disagree with the recommendation of the Board
of Inquiry to separate [Petitioner] with an honorable
discharge. I am very discouraged by this case, as
[Petitioner] has been done a disservice by his
counsel. The root problem of lack of preparation by
the respondent's counsel, despite over a year of
Civilian counsel involvement in the case, has been
disguised and renamed in order to provide excuses

to delay or derail this case. Even the arguments

of [defense counsel's rebuttal and letter of
deficiency] evade the point that had the attorneys
exercised more care in representing [Petitioner],
raising appropriate concerns in a timely manner to
the proper authorities and discussing relevant
issues at the board [BOI], the outcome may well

have been different. As Convening Authority, TI

must not only maintain good order and discipline,
but also ensure justice for our military members.

I do not believe that the outcome of this case
promotes Navy interests...

...In short, while I agree with (and am bound by)
the Board's finding that [Petitioner] committed
misconduct, I do not agree that the misconduct
warrants the separation of a member with well
over 16 years of service who was selected toa
highly competitive program, and is still a viable
part of the Navy Nurse Corp [sic]. [Report of
Findings and Recommendations of the Board of the
fellow Navy officer] partially documents the
companion case, in which the Board of Inquiry
returned a finding of no misconduct.
[Petitioner's] misconduct is not sufficient to
warrant separation. I recommend that [Petitioner]
be retained in Naval Service and the case closed.

t. On 24 August 2005, the Commander of the Navy Personnel
Command submitted a decision letter to the Secretary of the Navy
with the BOI findings of 6 June 2005, recommending separation of
Petitioner with an honorable discharge due to unacceptable conduct.
On 26 August 2005, the Secretary of the Navy approved the
recommendation. On 30 September 2005, he was so discharged.

u. In his application, Petitioner's current counsel states in
essence that Petitioner did not have effective assistance of counsel,
as evidenced by his military defense counsel's request for
continuance at the beginning of the BOI and the Commandant of the
Naval District Washington's letter which stated that the root problem
was the lack of preparation of counsel. His counsel further states
that the BOI instructions did not include the option to find him
guilty of misconduct and still retain him, even though a BOI for
another officer allegedly involved in the same conduct had that
option and was retained. His counsel concluded that these two
mistakes have cost Petitioner his career in the Navy and the Navy
lost an outstanding nurse.

v. On 11 June 2008, the Director of the Gannon University School
of Anesthesia submitted a letter to BCNR in which he stated that
Petitioner is a senior student in good academic standing with a grade
point average of 3.687 and is expected to graduate on 9 May 2009.

w. Attached to enclosure (1) is a BCNR letter to the Commander,
Navy Personnel Command (Code OOJ), that requested comments and
recommendation on the following issues:

(1) Does it appear that the convening authority acted
improperly in refusing the request for an extension of time submitted
by Petitioner's counsel and, if so, was Petitioner prejudiced by this
denial?

(2) Should corrective action be taken given the ambiguity of
the findings and recommendations worksheet; and the comments of two
BOI members [enclosures] to the effect that they were unaware of
their option to find that Petitioner had committed misconduct but
close the case and, had they been aware of this option, would have
exercised it?

x. Attached to enclosure (1) is an advisory opinion from the Navy
Personnel Command (Code-00J), which states, in part, as follows:

...l recommend denial of [Petitioner's request]
and opine that no relief is warranted...

...The Convening Authority acted properly in
denying the continuance request of

14 February 2005. [Petitioner] had had the
same civilian counsel regarding the same
offenses for 13 months prior to the BOT.
Respondents must have a minimum of 30 days
notice, their retention of civilian counsel
cannot cause undue delay of the proceedings,
and [Petitioner] could have requested his
original military counsel via an Individual
Military Counsel (IMC) request had he
desired to do so for continuity of military
representation.

...The Findings Worksheet used by the BOI
mirrors the language in the instruction and
is not ambiguous. If retention despite a

finding of guilt was an outcome desired by
[Petitioner], his counsel had the opportunity

to argue for that. If the BOI members had

been confused, they could have sought

clarification during the BOI. [A BOI member's]
statement was considered by the entire chain of
command through SECNAV [Secretary of the Navy]

and rejected as a basis to retain [Petitioner].

The statements of [President of BOI] and [BOI member]
two years after the fact are dulled by time and
memory. Even upon consideration of these statements,
one officer is clear that she would have recommended
separation and the other two "believe" or "think

it likely" that they would have recommended
retention. None of the members is [sic] adamant

that they would have recommended separation. Due

to the length and otherwise high quality of

service by [Petitioner], this was undoubtedly a

tough case for the members and they may have
regretted their decisions made on 18 February 2005...

y. Attached to enclosure (1) is a rebuttal to the advisory
opinion from Petitioner's current counsel, which states, in part, as
follows:

...The BOI for [a fellow Navy officer] is
specifically relevant to the BOI for [Petitioner].
Except for the addition of the study aid which was
inadvertently distributed by [Petitioner] to his
class, the evidence of both BOI's was the same.

The main difference between the two is that

[a fellow Navy officer] had adequate time to prepare
for the BOI with his counsel while [Petitioner] was
only given three weeks to prepare with his counsel
for the same hearing. [Petitioner's] counsel

did ask for a continuance of the board [sic] to
allow him adequate time to prepare for the

case, that request was denied...

...The Report of Findings worksheet which was

given to [Petitioner's] board [sic] did not include
a section which gave them the option of recommending
that [Petitioner] be retained in the Naval Service
even if misconduct had been found...It was the duty
of his military counsel...to point out these
discrepancies to the Board so that [Petitioner]

had every possible advantage. This was not done in
[Petitioner's] case...Obviously from their later
statements, they did not realize the option to find
[Petitioner] guilty of misconduct yet retain him

on active duty was available...
...ToO summarize, [Petitioner] was not afforded the
opportunity to adequately prepare for the BOI with
counsel although his counsel did request a continuance
which was denied. Regardless of what the instruction
governing BOI's states, [Petitioner's military defense
counsel] who was appointed to [Petitioner's] case was
not located in his geographical area, making it
difficult to prepare for trial [fand]...first contacted
[Petitioner] a mere 3 weeks in advance of the BOI,
giving them little time to prepare...Two of the three
members of his BOT have indicated that if offered the
chance to retain [Petitioner] on active duty it is
likely they would have done so...[Petitioner's]
counsel's failure to argue for retention despite a
finding of guilt was just further evidence of the
inadequacy of counsel...

z. Regulations governing involuntary separation of officers
state that officers may be processed for separation for cause when
substandard performance of duty and misconduct is evidenced by one or
more specified reasons. Regulations further state that the
respondent has the right to request reasonable additional time to
prepare his case for a BOI, specifically, in addition to 30 days
prior to the BOI, he may for good cause, petition the convening
authority for a continuance prior to convening of the BOI and once
convened, the senior member of the BOI may rule on such a request or
refer the request for continuance to the convening authority.

aa. Regulations and title 10 of the U.S.C, section 1182 and 14903,
state that a BOI shall give a fair and impartial hearing for an
officer required to show cause for retention. Regulations state that
the BOI will make a determination by majority vote a finding on each
of the specified reasons for separation. Regulations further state
that the BOI will make a recommendation for separation from the naval
service for the specific reasons provided by the regulations,
specifically, the policy governing separation for cause or make a
recommendation that none of the reasons specified are supported by
sufficient evidence presented to warrant separation for cause.
Regarding the latter recommendation, regulations authorize a BOI to
make this recommendation when the BOI has found that one or more of
the bases for separation were supported by a preponderance of the
evidence, but finds that separation is not warranted.

bb. According to title 10 U.S.C., section 6323, an officer of the
Navy or the Marine Corps who applies for retirement after completing
more than 20 years of active service, of which at least ten years was
service as a commissioned officer, may in the discretion of the
President, be retired on the first day of any month. The Uniform
Retirement Date Act, 5 U.S.C. 8301, requires that the effective date
of any retirement be the first day of the month.

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CONCLUSION:

Upon review and consideration of all the evidence of record, BCNR
concludes that Petitioner's request warrants partial relief.
Specifically, the Board finds that sufficient evidence exists to
require Petitioner to show cause for retention, however, it also
finds that Petitioner did not receive a fair hearing, specifically,
his BOI was prejudiced by the convening authority's denial for
continuance and BOI members were not aware that they could recommend
retention if misconduct were found. In this regard, regulations
authorize granting a respondent, for good cause, a continuance of
reasonable additional time, in addition to 30 days prior to convening
of a BOT. BCNR finds the convening authority's decision to deny a
continuance of the BOI was based on factually inaccurate information
provided by the government counsel. Furthermore, BOI audiotapes
reveal that the military defense counsel requested another
continuance when the BOI convened and justified his request by
Stating that he was not prepared due to being assigned as counsel
during January 2005, and receiving discovery on 10 February 2005.
Even so, the senior member of the BOI denied the request for
continuance, which resulted in Petitioner's reliance on a civilian
counsel who represented him during GU proceedings and had also just
received the recent government discovery. The BOI audiotapes reveal
that the members were not advised by the recorder, government counsel
or defense counsels during preliminary matters, or during opening or
closing statements that they had the option to recommend retention if
misconduct, were found. The BOI audiotapes also reveal that the
president of the BOI read the findings and recommendations just as
they voted and there was no questioning or argument regarding an
option to retain him. Additionally, the BOI findings and
recommendation worksheet was ambiguous, since it did not clearly
state the option to recommend retention if misconduct were found,
which is authorized by regulations. Given the statements provided by
the BOI members, BCNR finds that none of them were aware that they
had the option to recommend retention if misconduct were found, and
two of the three BOI members' statements show that they would have
likely recommended retention. Moreover, the BOI findings and
recommendation worksheet of the other Navy officer involved in the
same incident and was retained, clearly indicate an option for the
BOI to recommend retention if misconduct were found. Finally, BCNR
considers the Commandant of the Naval District Washington's
endorsement of 15 June 2005, who recommended retention despite the
BOI findings of misconduct. BCNR believes that the Commandant's
recommendation should have had greater bearing in this case. BCNR
also takes into account Petitioner's overall service record that
included more than 18 years and five months of active service and
found that the Navy Nurse Corps' continued trust in his professional
competence was demonstrated by allowing him to continue to perform
duties as a nurse until he was discharged. It therefore concludes
that Petitioner should not have been discharged, but should have been
retained and continued on active duty until he voluntarily requested

ded.
and was authorized retirement when he completed 20 years of active
service. Because of the requirements of the Uniform Retirement Date
Act, the date of retirement will be effective the first day of the
month. In view of the above, the Board recommends the following
limited corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he
was not discharged, but continued on active duty until he voluntarily
requested and was authorized retirement when he completed 20 years of
active service, at which time he was honorably retired.

b. That any material or entries inconsistent with or relating to
the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.

c. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of this
Report of Proceedings, for retention in a confidential file
maintained for such purpose, with no cross reference being made a
part of Petitioner's naval record.

d. That no further relief is recommended.

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 BRIAN J Sarco) Aaoagh
Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your review and
action.

 

Reviewed and approved:

Ads. Gs

A-AL-3e

Robert T. Cali
Assistant General Counsel
Manpower and Reserve Afiairs)

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