Navy Administrative Separation: Retained and No Basis for Misconduct

A Navy Petty officer First Class for the second time in less than two years was referred by his Command for involuntary administrative separation.  The Command accused him of making a False Official Statement, Disobeying a Commissioned Officer and Dereliction of Duty.   The Petty Officer declined Non-Judicial Punishment and demanded trial by court-martial.  Rather than afford him with his right, the Command elected for the less formal administrative separation procedure.

The Petty Officer retained Civilian Military Defense Attorney, John L. Calcagni III, to defend him this time.   Attorney Calcagni represented the Petty Officer at his previous board and got him retained.   This time around, the service member doubled down with Attorney Calcagni.

The accusations stemmed from the following story.  The Petty Officer was required to stand watch in a medical clinic where he worked.  Inside the clinic were several freezers and refrigerators that store immunizations.  To preserve the immunizations, the cooling equipment must be kept at certain temperature levels.  The levels are monitored by a central computer system, which must be checked repeatedly during the watch period.   Apparently, a new rule was implemented that also required watch personnel to physically inspect each piece of cooling equipment to ensure its proper functioning and temperature, and to write this information into a manual log.  While on watch, the commander told the Petty Officer to “check the temperatures.”

He acknowledged this order.  The next day, the commander notes that the manual logs were incomplete.   Upon inquiring of the Petty Officer if he checked the temperatures, he responded affirmatively.  When confronted with the fact he had not completed the log book, he signed his initials.   This troubled the commander and initiated an investigation.   Evidence showed that the Petty Officer only checked the temperatures on the computer and not manually with each piece of cooling equipment, as newly required.    As a result, the Command accused the Petty Officer of a False Official Statement to the commander when he affirmed that he had checked the temperatures, Disobeying a Commissioned Officer by not physically checking the various freezers and refrigerators as she had directed, and Dereliction of Duty by failing to do the same.

The matter proceeded to an administrative separation board.  The defense theory was that this was a matter of miscommunication and not misconduct.  Attorney Calcagni offered evidence that his client was unaware of the newly imposed log-in and manual checks requirement for the cooling equipment.    When the Petty Officer signed into this duty assignment, his Personnel Qualification Standards (PQS) included the computer check only.   Once the log-in and manual checks requirement was implemented, it was distributed by email only.

There was no evidence that the Petty Officer received the email.  The command failed to conduct or implement any training about this new requirement.  It was not until after this incident that an actual written instruction was even created regarding the new manual checks requirement.  Also, the Petty Officer cooperated in the investigation, discussed the lack of training or communication about the new requirement, and even brought to the command’s attention the lack of clear training and guidance about watch standing duties.

Attorney Calcagni also cross-examined two members of the Petty Officer’s chain of command, who apparently lied under oath to influence the board members’ decision and perceptions about the Petty Officer.   Lastly, Attorney Calcagni offered evidence of the Petty Officer’s 15 years on active duty, overall strong career, and family to include disabled children.  Justice prevailed for this Petty Officer by the board’s unanimous vote rejecting the government’s claims of misconduct by finding no factual basis for the alleged misconduct or separation from service.