DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
REC
Docket No: 13164-11
2 March 2012
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.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 15 February 2012. 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.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You were commissioned in the Navy on 29 May 1991. You then
served well and without disciplinary incident for more than 20
years. During this period, you were promoted to commander, pay
grade 0-5.
Apparently, you were verbally counseled by your Commanding
Officer (CO) on three occasions concerning allegations of
harassment, and being overly friendly with female civilian
employees. On 17 February 2011, during the Pacific Fleet
Inspector General (IG) visit, two anonymous Navy Hotline
complaints were filed concerning alleged sexual harassment
creating a hostile work environment against you. On 18 February
2011, a formal investigation was initiated to determine if a
hostile work environment was created or if you had engaged in
preferential treatment, and if any sexual harassment was caused
by your actions. The results of the investigation were provided
to your CO, and he determined there was sufficient evidence to
conduct nonjudicial punishment (NJP). On 1 April 2011, you
accepted NUP, and did not demand trial by court-martial. You
were charged with violation of the Uniform Code of Military
Justice (UCMJ) Article 92: failure to obey four lawful orders to
limit your interactions with female employees, wrongfully
creating an intimidating, hostile, or offensive work
environment, wrongfully traveling to Bali, Indonesia, without
authorization, and willfully failing to perform the basic duties
and functions of an Executive Officer; Article 133: engaging in
inappropriate relationships with female members of the staff, by
using your command position to enhance or encourage personal
relationships, and significantly departing from acceptable
standards of conduct; and Article 134: adultery. You were
found guilty of all charges except for adultery, and awarded a
punitive letter of reprimand. On 1 April 2011, you were
informed of your rights to appeal the NUP, which you elected to
do. However, you failed to submit your appeal in a timely
manner.
On 18 April 2011, a report of the NUP was forwarded to the
Commander, Navy Personnel Command (NPC). On 10 June 2011, NPC
directed you to show cause for retention. On 19 October 2011,
your case was presented to a Board of Inquiry (BOI). The BOI
found by a vote of three to zero that you had not committed
misconduct and recommended that you be retained in the Navy.
The results of the BOI were forwarded and you were informed that
you would be retained in the Navy, but that the NUP would become
part of your official record.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, especially the BOI’s finding
of no misconduct. Nevertheless, the Board concluded these
factors were not sufficient to remove the NJP, adverse fitness
report, detachment for cause, punitive letter of reprimand from
your official record, nor grant you consideration by a special
selection board. Additionally, it is important to keep in mind
that the NJP and BOI were two separate proceedings, and the
decision of the latter does not invalidate the finding of the
former. This is especially true in your case because the
commanding officer’s decision to impose NUP was based on a
thorough fact finding investigation. Moreover, you presented no
evidence at the BOI that was not carefully reviewed by your
commanding officer when he imposed NUP. 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,
San
W. DEAN PF
Executive or
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