DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

BJG
Docket No: 7874-09
16 December 2009

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

   

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REVIEW OF NAVAL RECORD

Ref: {a} Title 10 U.S.C. 1552

DD Form 149 dtd 10 Jul 09 w/attachments
PERS-32 memo dtd 13 Aug 09

PERS-OO7 memo dtd 1 Sep 09

PERS-834 memo dtd 17 Sep 09 w/encls
PERS-80 memo dtd 20 Oct 09

PERS-802 e-mail dtd 8 Dec 09
Counsel ltr dtd 4 Dec 09 ae NS

Encl:

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1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by removing the
fitness reports for 2 February 2001 to 31 January 2002 and 1
February 2002 to 31 January 2003, copies of which are at Tabs A
and B, respectively. He further requested promotion to
lieutenant commander, pursuant to his selection by the Fiscal
Year (FY) 2003 Staff Lieutenant Commander Selection Board, with
a date of rank and effective date of 1 February 2003, and
correction of his naval record to reflect his retirement on 1
October 2003 was in the grade of lieutenant commander, pay
grade 0-4, rather than lieutenant, pay grade 0-3.

2. The Board, consisting of Messrs. Garst, Leeman and Mann,
reviewed allegations of error and injustice on 10 December
2009, and pursuant to its regulations, determined that limited
relief should be granted. 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:

 

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a. Petitioner exhausted all administrative remedies which
were available under existing law and regulations within the
Department of the Navy.

b. On 31 January 2002, Petitioner was convicted by a
general court-martial (GCM) of conspiracy to make a false
statement, conduct unbecoming an officer and false swearing in
violation of Articles 81, 133 and 134 of the Uniform Code of
Military Justice (UCMJ). He was acquitted of conspiracy to
commit indecent acts and sodomy, an orders violation and
indecent acts in violation of Articles 81, 92, 120, 125 and
134. The charges stemmed from an incident in 2001. On the

evening in question, at the home of Lieutenant H---, Petitioner
and Lieutenants H--- and W--- allegedly committed various

sexual acts against the will of a junior enlisted female, YNSN
(pay grade E-3) A---. The next day, she reported that she had

been raped and otherwise sexually assaulted by Petitioner and
the other two officers. The Naval Criminal Investigative
Service found three used condoms in an outdoor garbage can at
Lieutenant H---'s home. The condoms were examined by the
United States Army Criminal Investigative Laboratory and it was
determined that Petitioner’s and the victim’s deoxyribonucleic
acid (DNA) was on one of them. Petitioner was sentenced to
forfeit $500.00 pay per month for two months and to be
reprimanded. The convening authority approved the conviction
and sentence on 13 December 2002, when the conviction became
final.

c. Although Petitioner was convicted during the period of
the contested fitness report for 2 February 2001 to 31 January
2002, this report-contains nothing derogatory, presumably
because the conviction was not finalized until after the
reporting period. The other contested report, for 1 February
2002 to 31 January 2003, during which the convening authority
acted, documents Petitioner’s conviction by GCM.

d. Petitioner was selected by the Fiscal Year (FY))} 2003
Staff Lieutenant Commander Selection Board, convened on 29
April 2002. In February 2003, Petitioner was notified of the
determination that there was sufficient evidence to require him
to show cause for his retention in the naval service. In May
2003, a board of inquiry decided he should be retained,
notwithstanding his GCM conviction. In June 2003, he submitted
a request for retirement. This request was approved, and he
was retired in the grade of lieutenant effective 1 October
2003. He asserts his retirement was not truly voluntary, as he
maintains he was counseled he had no option but to retire,
having survived a board of inquiry and having been convicted by
a GCM.
e. On 13 December 2004, as the result of a review under
Article 69(a) of the UCMJ, Petitioner’s conviction of false
swearing was set aside.

f. On 4 June 2009, as the result of a review under Article
73 of the UCMJ, Petitioner's entire GCM conviction was set
aside (Appendix/Exhibit B to counsel's brief at enclosure (1)).
The conviction of conduct unbecoming an officer was set aside
because retesting of the DNA evidence that had been found at
the scene excluded Petitioner as a possible source. The
conviction of conspiracy to make a false statement was set
aside because the findings did not establish which statements
provided the basis for the conviction. The “Background”
section at page 2 of the review summarizes the facts of the

case.

g. Petitioner, through counsel, contends he should be
granted the requested relief because his GCM conviction has
been set aside. His affidavit at Appendix/Exhibit C to
counsel’s brief at enclosure (1) does not address the facts of
what transpired at the home of Lieutenant H--~ on the evening

in question.

h. In enclosure (2), the Navy Personnel Command (NPC)
office with cognizance over performance evaluation has
commented to the effect that both contested fitness reports

should stand.

i. In enclosure (3), the NPC Office of Legal Counsel has
stated that while this Board does not have the authority to
promote Petitioner to lieutenant commander, his promotion is
“warranted.” This advisory opinion incorrectly stated that
Petitioner had been removed from the FY 2003 Staff Lieutenant
Commander Promotion List. It further incorrectly stated that
his retirement, which he did not request until June 2003, was
the reason he was ineligible to be considered by the FY 2004
Staff Lieutenant Commander Selection Board, convened on 28
April 2003. Finally, it incorrectly indicated that Petitioner
requested “redaction” of only one fitness report, his report of
31 January 2002, and recommended removing that report. This is
understood to be a recommendation to remove the report for 1
February 2002 to 31 January 2003, which documents the

conviction that has been set aside. This advisory opinion
correctly noted that Petitioner's retirement in the grade of

lieutenant commander required service in that grade for a
minimum of six months.
j. In enclosure (4), the NPC Officer Performance and
Separations Branch has commented to the effect that
Petitioner’s request to remove the fitness report for 1
February 2002 to 31 January 2003 should be approved, but the
remaining contested report should stand. This advisory opinion
stated that after Petitioner had been selected by the FY 2003
Staff Lieutenant Commander Selection Board, his name was
withheld from the message promulgating the results of the
promotion board. An enclosure to this advisory opinion is the
letter to Petitioner advising him that his name had been
withheld from the message because of his GCM conviction, that
he could make a statement or provide additional information he
wanted considered, and that no final decision had been made
regarding his nomination for promotion. This advisory opinion
noted that Petitioner’s promotion to lieutenant commander
required approval by the Secretary of Defense on behalf of the
President and Senate confirmation, neither of which had been
received before he became ineligible for promotion by reason of
his retirement; and that his retirement was voluntary, because
he submitted his request for retirement after the conclusion of
the board of inquiry and before the determination of his
promotion nomination. This advisory opinion incorrectly stated
Petitioner would not have had sufficient time in grade to
retire as a lieutenant commander. Had he been promoted with a
date of rank and effective date of 1 February 2003, as he
requests, his retirement effective 1 October 2003 would have
given him eight months of service in grade, well beyond the six
months required.

k. In enclosure (5), the NPC Officer Career Progression
Branch has commented to the effect that the fitness report for
1 February 2002 to 31 January 2003 should be removed, that
Petitioner’s promotion to lieutenant commander cannot be
granted as his nomination has not been approved or confirmed,
and that Petitioner voluntarily retired. This advisory opinion
incorrectly stated that Petitioner would not have had
sufficient time in grade to retire as a lieutenant commander,
because he retired in June of 2003. While he requested
retirement in June 2003, his retirement was not effective until
1 October 2003.

1. Enclosure (6) verifies that 1 February 2003 is the date
of rank and effective date Petitioner would have been assigned,
had he been promoted pursuant to his selection by the FY 2003
Staff Lieutenant Commander Selection Board.

m. In enclosure (7), Petitioner’s counsel agreed with the
recommendations to remove the fitness report for 1 February
2002 to 31 January 2003; and he argued that the report for 2
February 2001 to 31 January 2002 should be removed as well,
since it shows lowered performance as a result of the ongoing
court-martial process. He also insisted that Petitioner's
retirement was not voluntary, as he had been counseled he had
no option other than retirement. Counsel erroneously stated
that Petitioner had been removed from the lieutenant commander
promotion list (as did Petitioner in his affidavit).

CONCLUSION:

Upon review and consideration of all the evidence of record,
notwithstanding enclosure (2) and especially in light of
enclosures (3), (4) and (5), the Board finds the existence of
an injustice warranting limited corrective action,
specifically, removal of the fitness report for 1 February 2002
to 31 January 2003, as it documents the GCM that has been set
aside, and removal of all other references to that conviction.

The Board is unable to find the contested fitness report for 2
February 2001 to 31 January 2002 was influenced in any way by
Petitioner’s GCM conviction.

The Board does not recommend favorable action regarding
Petitioner’s request for promotion to lieutenant commander and
retirement in that grade. In this regard, the Board finds
Petitioner did voluntarily request the retirement that has made
him ineligible for promotion. Further, the Board finds that
the information in the “Background” section of the Article 73
review at Appendix/Exhibit B to counsel’s brief at enclosure

(1) calls into question his fitness for promotion, particularly
his judgment, without regard for the offenses of which he was
charged at his GCM.

In view of the above, the Board directs the following limited
corrective action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected by removing
the following fitness report and related material:

. Period of Report
Date of Report Reporting Senior From To

  

26 Jan 03 CUSN 1 Feb 02 31 Jan 03

b. That there be inserted in his record a memorandum in
place of the removed report, containing identifying data
concerning the report; that such memorandum state that the

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report has been removed by order of the Secretary of the Navy
in accordance with the provisions of federal law and may not be
made available to selection boards and other reviewing
authorities; and that such boards may not conjecture or draw

any inference as to. the nature of the report.

c. That his record be corrected further by removing all
other documentation of or reference to his general court-
martial conviction of 31 January 2002.

d. 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.

e. 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.

£. That the remainder of Petitioner's request be denied.

4. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal

Regulations, Section 723.6(c)) 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.

Dora zhens f, fetibae

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

5, Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it
is hereby announced that the foregoing corrective action, taken
under the authority of reference (a), has been approved by the
Board on behalf of the Secretary of the Navy.

\DYeon

W. DEAN PFE
Executive Dirac

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