DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TJR
Docket No: 10738-12
9 February 2015

 

From: Chairman, Board for Correction of Naval Records
15% Secretary of the Navy

XXX-XX

Ref: 4a} 20 WU. S. C. 1552

Encl: (1) DD Form 149 with attachments
(2) Case summary with attachments
(3) Petitioner's naval record (excerpts)

1. Pursuant to the provisions. of reference (a), Petitioner, a
former officer of the Navy, filed enclosure (1) with this Board
requesting that his naval record be corrected by removing any and
all derogatory material referencing the imposition of nonjudicial
punishment (NJP) on 3 December 2009, for conduct unbecoming an
officer and a gentleman, issuance of a Punitive Letter of
Reprimand dated 10 December 2009, the proceedings of a Board of
Inquiry (BOI) dated 16 November 2010, and administrative
separation documentation of June 2011. This request includes,
but is not limited to any and all other references surrounding
the circumstances of the NJP and BOI as reflected in his Official
Military Personnel File (OMPF). Petitioner further requests.
reinstatement in the Navy with back pay and allowances.

Enclosures (2) and (3) apply.

2. The Board, consisting of ae | and mm
MMMM, reviewed Petitioner's allegations of error and injustice

on 27 January 2015, and, pursuant to its regulations, determined
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. In addition, the
board considered the advisory opinion (AO) furnished by the
Deputy Assistant Judge Advocate General (DA-JAG) (Administrative
Law) dated 25 March 2014, a copy of which is attached to
enclosure (2).

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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Docket No: 10738-14

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

c. In October 2009, Petittioner was the subject of an
investigation regarding allegations of unduly familiar
relationships and engaging in unprofessional conversations and
physical interactions with subordinate members. As a result, he
was relieved of his duties pending disciplinary action. At this
same time he was granted a period of leave.

d. In November 2009, Petitioner was notified of pending
imposition of NUP. On 2 December 2009, after consulting with
civilian counsel, Petitioner revoked the foregoing notification
and refused NJP because he was on “transfer leave and his ship
was alongside pier in Norfolk, VA,” and that he/his counsel was
not afforded an opportunity to review trial documents. He stated
that if he were ordered to attend the NJP hearing over his
objection to do so, he would refuse the orders and would not make
any statements since he was not properly notified of his rights.
Petitioner and/or his counsel further stated, in part, that the
imposition of the NJP was unlawful because of the lack of
impartiality of the investigating officer, undue command
influence from his chain-of-command, failure to allow the
submission of witnesses’ statements, and denial to demand trial
by court-martial. In response to the foregoing, the executive
officer advised Petitioner that he did not have a right to refuse
NUP, he was still attached to the ship, and that his failure to
appear for the imposition of NJP would constitute a failure to
obey a lawful order violation. Petitioner was also advised that
he did have the right to make a statement at the NJP proceedings.

e. Petitioner received NJP on 3 December 2009, for conduct
unbecoming an officer and a gentlemen and to the disgrace of the
Officer Corps of the U. S. Navy by engaging in a series of
unprofessional conversations and physical interactions with
subordinate members of the Armed Forces. The punishment imposed
was a Punitive Letter of Reprimand which Petitioner acknowledged
receipt of on 11 December 2009.

f. On 16 November 2010, a BOI convened, but without a Surface
Warfare Officer (SWO) or Unrestricted Line Officer (ULO) board
member, which was representative of Petitioner’s competitive
category. Nonetheless, the BOI determined that because of
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Docket No: 10738-14

Petitioner’s misconduct, substandard performance of duty, and
failure to conform to prescribed standards of military
deportment, he was not recommended for retention in the Navy.
Subsequently, Petitioner was administratively processed for
separation. Upon completion of review by separation authorities,
the discharge authority directed an honorable discharge by reason
of misconduct due to minor infractions, and on 30 June 2011,
Petitioner was so discharged.

g. An advisory opinion received from the Deputy Assistant
Judge Advocate General (Administrative Law) states in part, that
the errors, specifically, imposition of NJP and the improper
convening of the BOI, if substantiated, cannot be considered as
harmless because they were based on lack of impartiality of the
investigating officer, unlawful command influence, improper
disclosure by the investigating officer of witness statements to
other witnesses, failure to receive impartial flag review of the
NJP, failure to demand trial by court-martial; improperly
convened BOI, deliberation by BOI members prior to hearing all
evidence, improper ex parte communication, failure to provide
notice of allegations considered by the BOI, and additional
mitigating evidence of performance. As such, the Board's
determination for corrective action would be to remove all
records of the NJP and the BOL.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
‘Board concludes that Petitioner's request warrants favorable
action. In this regard, the Board substantially concurs with the
comments contained in the advisory opinion and concludes that the
documentation which resulted in the imposition of the NJP and the
convening of the BOI was based, in part, on unlawful command
influence and improprieties with the BOI’s composition, and as
such should be removed from the record. The Board also concludes
that any and all documentation referencing the NJP and BOI should
be removed from the record. However, the investigation that
formed the basis for the NJP and BOI may remain in his military
record. The Board determined that the investigating officer was
impartial and qualified to conduct the investigation.

In light of the foregoing, the Board further concludes that
Petitioner’s discharge of 30 June 2011, should be set aside, and
that he be reinstated in the Navy and restored all back pay and
allowances affected by virtue of the discharge.
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Docket No: 10738-14

In view of the foregoing, the Board finds the existence of an
error and injustice warranting the following corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing
and/or totally obliterating the NJP imposed on 3 December 2009,
as well as all references thereto, and that all rights,
privileges, and property affected by virtue of the NUP be
restored.

b. That Petitioner's naval record be corrected by removing
and/or totally obliterating the BOI documentation dated 16
November 2009, and all references thereto.

c. That Petitioner’s discharge of 30 June 2011, be set aside
and the record corrected to reflect continuous service; and that
he be reinstated in the Navy on active duty accordingly.
Further, all references regarding the discharge shall be removed
or totally obliterated from his record.

d. That any and all materials 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 materials be added to the record in the future.

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.

T. JV REED
Recorder
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Docket No: 10738-14

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 Regulation, 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.

  
   

OBERT J. O'NEILL
Executive Director