DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL
X

2 NAVY ANNE

 

RECORDS

WASHINGTON DC 20370-5100

 

TRG

Docket No: 2929-00
8 November 2001

Chairman, Board for Correction of Naval Records
Secretary of the Navy

REVIEW OF

NAVAL RECORD OF

- -

(a) Title   10 U.S.C. 1552

(1) Case Summary
(2) Subject's naval record

From:
To:

Subj:

Ref:

Encl:

1.
Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Navy filed an application with this Board
requesting that his record be corrected by removing the
nonjudicial punishment (NJP) of 23 April 1997 from his record,
and/or reinstatement to  
DKl (E-6) with his original time in rate
(TIR), He also requests a special selection board for chief petty
officer.

The Board, consisting of Mr. Pfeiffer, Mr. Zsalman and Ms.

2.
Hare, reviewed Petitioner's allegations of error and injustice on
30 October 2001 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

Documentary material considered by

The Board, having reviewed all the facts of record pertaining

3.
to Petitioner's allegations of error and injustice, finds as
follows:

a.

Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b.

Although it appears that Petitioner's application was

not filed in a timely manner,
waive the statute of limitations and review the application on
its merits.

it is in the interest of justice to

C .

Petitioner reenlisted in the Navy on 16 April 1992 after

about nine years of prior active service, and subsequently
extended that enlistment for 16 months.
had served in an excellent manner during his prior service.

The record shows that he

d.

On 9 November 1996 Petitioner reported aboard the USS
On 21 April 1997, the combat systems

ARLEIGH BURKE (DDG 51).
officer completed an inquiry into charges preferred against

Petitioner, and concluded that he had been disrespectful and had
connnunicated a threat to the disbursing officer.
report indicates that two master chiefs believed that Petitioner
had made a threat towards the disbursing officer, and a chief
petty officer and a petty officer first class stated that
Petitioner was disrespectful towards the disbursing officer. On
23 April 1997 he received NJP for disrespect towards a superior
commissioned officer and communicating a threat.
imposed was a reduction in rate from  

DKl to DK2 (E-5).

The inquiry

The punishment

In the performance evaluation for the period 16 November

to 23 April 1997 (ending date later changed to 16 June 1997

1995 
to coincide with the date of his detachment) he was assigned
adverse marks of 1.0 in the categories of equal opportunity,
The
military bearing/character,
comments state, in part, as follows:

teamwork and leadership.

. 

. During this reporting period (he) has displayed a

. 
pattern of confrontational behavior and difficulty
dealing with anger that has precluded his effectiveness
as a leading petty officer and distracts from his
ability to be effective in leadership positions. . . . .

f.

On 23 April 1997 in connection with the NJP proceedings,

Petitioner filed an equal opportunity complaint alleging a
pattern of abuse by the disbursing officer and contending that he
was only disciplined because the command was attempting to cover
up disbursing irregularities.
stated that he could not get along with the disbursing officer
who was constantly belittling his efforts and making insensitive
comments concerning his Hispanic heritage.

In the complaint, Petitioner

9.

The CO also noted that

In his endorsement to Petitioner's complaint, the

commanding officer (CO) stated that an outside auditor had found
no significant disbursing irregularities.
there were no witnesses that could corroborate any abusive or
discriminatory behavior against Petitioner.
that Petitioner had a stellar record prior to reporting, but
early in his career he had difficulty dealing with authority and
had exhibited confrontational behavior.
evidence to support any of Petitioner's contentions, the CO
recommended that the equal opportunity complaint be closed.
Subsequently, the squadron commander and the Commander, Naval
Surface Forces Atlantic found the allegations of discrimination
to be unsubstantiated.
declined to review the case.

Later, the Navy Inspector General

Since there was no

The CO points out

g.

in an excellent manner.
USS GONZALEZ (DDG 66).

Since the NJP, Petitioner has reenlisted and has served
On 25 July 2000 he reported aboard the
The performance evaluation for the period

2

26 July to 15 March 2001 is excellent and the comments state, in
part, as follows:

Recognized as Supply Department Sailor of the Year and
a runner-up for GONZALEZ Sailor of the Year for his
accomplishments perseverance and devotion. . . .

On 7 May 2001, Petitioner was awarded the Military Outstanding
Volunteer Service Medal.

h.

Petitioner has informed the examiner assigned to his
case that he will complete 20 years of active service in 2003
and will be forced to retire as a DK2 because the advancement
opportunities in the DK rating are very poor and his request for
restoration to 
the injustice in this case is compounded because the reduction in
rate will result in reduced earnings for the rest of his life.

He believes, in effect, that

DKl has been denied.

The Board is aware that the Military Personnel Manual
(MILP&MAN)  Article 1430-020 allows for special consideration
for restoration in rate on a case-by-case basis by the Chief of
Naval Personnel.
individuals who have been convicted of multiple offenses under
the UCMJ will not receive favorable consideration.
Further, a
request for restoration must be submitted within a window of 12
to 36 months from the imposition of NJP.
article are effective on the 16th of the month and the TIR is
either 1 January or 1 July as appropriate.

However, the article states that requests from

Advancements under this

CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants partial
favorable action.
was disrespectful and had communicated a threat.
Board concludes that the commanding officer did not abuse his
discretion when he imposed NJP and,
punishment was not too severe.
performance evaluation should remain in the record.

Concerning the NJP, the evidence shows that he
Therefore, the

Consequently, the NJP and related

given the circumstances, the

However, the Board notes Petitioner's excellent record both
before and after the NJP, the isolated nature of the offenses,
and the apparent personality conflict with the disbursing
officer.
was proper at the time, the probability that he will be forced to
retire in pay grade E-5 makes continuation of the reduction in
rate too severe.
his previous request for restoration under the provisions of

The Board believes that although the reduction in rate

The Board reaches this conclusion even though

3

MILPERSMAN 1430-020 was denied apparently because he committed
multiple offenses, and he is now outside the 12-36 month window.
Therefore, the Board concludes that Petitioner should be restored
DKl effective the 16th of the month following approval of this
to 
recommendation.

The TIR should be 1 July 2001.

The Board further concludes that this report of Proceedings
should be filed in Petitioner's naval record so that all future
reviewers will understand the circumstances of his advancement to
DKl.

RECOMMENDATION:

That Petitioner's naval record be corrected to show that

a.
he was restored to  
DKl on the 16th of the month following
approval of this recommendation with the appropriate TIR.

b.

That the remainder of his requests be denied.

That this Report of Proceedings be filed in Petitioner's

C .
naval record.

It is certified that a quorum was present at the Board's

4.
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

ROBERT D. ZSALMAN
Recorder

Acting Recorder

Pursuant to the delegation of authority set out in Section

5.
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.