DEPARTMENT OF THE NAVY

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

 

RDZ:ecb
Docket No. 07210-10
29 October 2010

 

This is in reference to your request that the Board reopen your
case and reconsider its earlier decision. A three-member panel
of the Board for Correction of Naval Records, sitting in
executive session, initially considered and denied your
application on 22 July 2008. In July 2010 the Board agreed to
reconsider its earlier decision and on 13 October 2010 a second
three member panel of the Board again reviewed your case. None
of three members who had voted to deny your application on 22
July 2008 sat on the panel that re-reviewed your case on 13
October 2010.

The record shows that in June 1999 during the course of a
training session on sexual harassment several of your shipmates
aboard USS CONSTELLATION complained that you had sexually
harassed them on more than one occasion. At the time USS
CONSTELLATION was deployed in Korean waters. When the
commanding officer of the ship was informed of these charges he
directed that an investigation be conducted and that it be
supervised by the ship’s legal officer who held the rank of
commander (0-5) and was a member of the Navy’s Judge Advocate
General Corps. Using senior noncommissioned officers who had
both training and experience in investigatory matters the
investigation resulted in seven of your shipmates giving sworn
statements that you had engaged in homosexual harassment and
assault. After the statements had been gathered an informal
disciplinary review board consisting of senior noncommissioned
officers examined the statements and conducted individual
interviews of the seven Sailors who had accused you of sexual
misconduct. The investigation was then forwarded up the chain
of command via the ship’s equal opportunity officer and chaplain
to the executive officer who then individually interviewed each
of your seven accusers. A noncommissioned officer who witnessed
the interviews later testified that each of the seven Sailors
had to stand at attention in front of the executive officer
while being subjected to aggressive and lengthy questioning. In
effect the executive officer was challenging the witnesses to
‘convince him that they were being truthful. After the executive
officer concluded his. questioning the matter was referred to
your commanding officer for his evaluation. Like the executive
officer he also individually questioned all seven Sailors and
then determined that the evidence before him warranted that you
be taken to nonjudicial punishment (NJP). Prior to commencement
of NUP proceedings you were informed of the charges against
your, provided with copies of your accusers’ statements, advised
of your right to call witnesses to testify on your behalf and to
have a personal representative chosen by you to be present at

these proceedings.

When your NJP began in July 1999 your commanding officer
reviewed the evidence against you. Although you failed to
produce any witnesses to rebut the evidence against you, you
insisted you were innocent and that your accusers were engaged
in a conspiracy based on their personal dislike of you and their
desire to get you off the ship. At this point your commanding
officer stopped the proceedings and directed his operations
officer who was also a Navy captain (0-6) to look into your
allegations of a conspiracy. The operations officer, with
assistance of his most senior enlisted servicemember, re-
interviewed your accusers as well as their supervisors and those
who participated in the initial investigation. The operations
officer reported back to your commanding officer that he had
uncovered no evidence of a conspiracy. To the contrary he found
that your seven accusers were not a very “close-knit group” and
in fact several of them appeared to dislike each other. NJP
proceedings resumed and you were informed of the operations
officer’s findings. At this point, in an effort to give you
every chance to defend yourself your commanding officer offered
to fly you off the ship to the naval base in Yokosuka, Japan
where you would be given a polygraph examination by the Naval
Criminal Investigative Service. At first you said you wanted
such an opportunity but later that same day you told your
commanding officer you had changed your mind. On 11 July 1999
at the conclusion of NUP proceedings your commanding officer

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found that you had committed the misconduct with which you were
charged and imposed punishment consisting of forfeiture of pay,
restriction, extra duty and reduction in rate. You chose not to
appeal your punishment to the reviewing authority but instead
complained to a member of the United States Senate. On 16
September 1999 your commanding officer wrote a letter to the
senator summarizing the evidence against you and the reasons for
his imposing punishment. A copy of his letter is enclosed.

Based on the frequency and seriousness of your misconduct your
commanding officer recommended that you be issued an other than
honorable discharge (OTH). An administrative discharge board
(ADB) was convened to consider this matter and a member of the
Navy's Judge Advocate General Corps was appointed to act as your
counsel. Prior to the actual convening of the ADB your counsel
was given the opportunity to question your accusers as well as
all potential witnesses either in person or by telephone. It
was during the course of these activities that your counsel
received testimony from five witnesses over the telephone that
were tape recorded. Transcripts were made of three witnesses’
tape recorded statements and later introduced into evidence at
the ADB. The tape recorded testimony of the remaining two
witnesses was later played at the ADB. All five stated that
they had never seen you sexually harass or assault anyone,
however one did admit that he was present when verbal exchanges
of a homosexual nature occurred between you and other members of
the crew but neither he nor anyone else appeared to take it

seriously.

The ADB convened on 2 November 1999 and the recorder introduced
into evidence the official documents pertaining to the NJP which
included the sworn statements of your accusers. The first
witness called to the stand was the leading chief petty officer
of the division to which you were assigned while serving aboard
USS CONSTELLATION. He testified as to the events that
precipitated the investigation, the manner in which it was
conducted and your performance of duty. Your commanding officer
also testified before the ADB. His testimony centered around
the investigation, the evidence it produced and his reasons For
imposing punishment. Both witnesses underwent thorough cross
examination by your counsel. Upon conclusion of your commanding
officer’s testimony and in rebuttal to the statements of your
accusers your counsel submitted the transcripts of the testimony
of the three witnesses previously obtained by telephone and
played the taped recorded testimony of the remaining two
witnesses. You were then called to the stand. You insisted you

 

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were innocent of the charges and repeated the claim you made at
the NUP proceedings that your seven accusers had conspired to
get you off the ship because they suspected you of being
homosexual. Upon conclusion of your testimony the ADB adjourned
the proceedings and began its deliberations. Upon completion of
deliberations the three members of the ADB unanimously found
that you had committed the misconduct with which you were
charged and recommended that you be discharged. Two recommended
that you receive an OTH. On 8 December 1999 the reviewing
authority approved the findings and recommendations of the ADB.
He specifically found the evidence of your guilt to be
overwhelming and because of the serious and pervasive nature of
your misconduct believed an OTH was more than appropriate. The
reviewing authority concluded by noting that although your
counsel indicated that he would be submitting an appeal in the
form of a letter of deficiency no such letter was ever received
and you thereby waived your right to appeal.

In its reconsideration of your case the Board after careful and
impartial examination of all the evidence of record including
your most recent submission finds as follows. First off it
emphatically rejects your contention that the investigation
conducted aboard USS CONSTELLATION was untimely and inaccurate.
To the contrary the evidence clearly shows that the
investigation was started soon after several of your shipmates
in the operations division complained of your behavior. The
investigation was conducted under the direct supervision of the
ship's legal officer an experienced and senior member of Judge
Advocate General Corps. The investigators consisted of senior
noncommissioned officers whose training and experience in
investigative matters made them well qualified to question and
conduct follow up interviews of the Sailors assigned to your
division. The thoroughness of the investigation can be seen in
part by the fact that the group of several Sailors accusing you
of misconduct eventually grew to seven. After taking the sworn
statements of your accusers the investigation was reviewed by
the ship’s disciplinary review board, equal opportunity officer
and chaplain. Additionally the executive officer, commanding
officer and operations officer conducted indepth individual
interviews of each of your accusers. The Board believes that
evidence of record shows that the investigation was timely,
thorough and fair. Moreover it resulted in a substantial amount
of credible evidence that persuaded your commanding officer and
the members of the ADB that you had in fact committed the
misconduct that you were charged with. The Board therefore
concludes that the investigation and subsequent proceedings were

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legally sound and fair. Thus it can find no error or injustice
that would warrant changing your discharge.

Turning its attention to the issue of whether your discharge
should be upgraded as a matter of clemency based on your post
service conduct and achievements the Board concludes that these
commendable matters cannot overcome the fact your misconduct was
both serious and frequent. Simply put your illegal behavior was
persistent, personally intrusive and demeaning to your shipmates
and physically aggressive. There can be no doubt that it had an
adverse impact on morale and the ability of your shipmates to
perform their military duties. Equally important some of this
misconduct occurred while your ship was deployed at sea, an
environment which even under the best of circumstances is both
physically and emotionally demanding.

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,

 
 
   
 

Lo

W. DEAN PW
Executive ctor