DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL

 RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-5100

 

TRG

Docket No: 5582-01
16 November 2001

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

RECORD OF

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

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

From:
To:

Subj:

Ref:

Encl:

Pursuant to the provisions of reference (a), Petitioner, an
1.
enlisted member of the Navy filed an application with this Board
requesting that his record-be corrected-to
reduction in rate, imposed at the 17 March
punishment 

show that the
1997 nonjudicial

(NJP) was suspended.

2.
The Board, consisting of Mr. Pfeiffer, Mr. Taylor and Mr.
Novello, reviewed Petitioner's allegations
on 6 November 2001 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.

of error and injustice

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

Petitioner reenlisted in the Navy on 8 December 1995 for
On 17 March 1997, while serving on board the USS

C .
4 years.
MICHIGAN (SSBN 727) he received NJP for two instances of
disobedience and making a false official statement.
punishment imposed was a reduction in rate from MM1 (E-6) to MM2
(E-5).
The performance evaluation for the period 16 November
1996 to 17 March 1997 is adverse, with an individual trait
average of 1.71, and he was not recommended for retention or
advancement.

The

d. 

On  25 June 1997 Petitioner reported aboard the USS

FLORIDA (SSBN  
officer in charge of the personnel support activity, the
commanding officer stated as follows:

In a 9 September 1998 letter to the

728)(BLUE).

..Per references (a) and (b) (JAGINST  
Manual for Courts-Martial),
1997 is hereby changed and subject member is restored
to Machinist's Mate First Class  
1998.

5800.8C and the
(NJP) awarded on 17 March

(MMl) effective 15 July

After review,
it was determined that the commanding officer's
recommendation could not be implemented because he did not have

the power to restore Petitioner to  
commanding officer endorsed Petitioner's letter of 15 October
1998 and recommended that the Bureau of Naval Personnel restore
him to MM1 effective 15 July 1998.
was informed by the Navy Personnel Command that he had been
restored to  
of the Military Personnel Manual (MILPERSMAN) Article 1430-020
because of his subsequent excellent performance of duty.

MMl, effective 16 February 1999, under the provisions

On 29 January 1999 Petitioner

On 22 October 1998 the

MMl.

or the original reduction in rate.
Petitioner has reenlisted and continues to serve in an excellent
manner.

However, the advancement has no effect on the NJP
Since this action was taken,

With
this date of advancement,
January 1999.

1430.16D) states
"set aside", such action

e.

The Navy Advancement Manual (BUPERSINST  

that when a punishment imposed at NJP is  
means that the punishment never occurred.
Since the only
punishment imposed at the NJP was the reduction in rate, an
action setting aside the reduction would leave no punishment
remaining.
the NJP is a nullity and it must be removed from the record.
Additionally, if an NJP punishment is mitigated to a lesser
punishment or suspended,
NJP remains in the record.
punishment, the Manual for Courts-Martial states, in part, as
follows:

Concerning suspension of a

The Board is aware that if no punishment is imposed,

the original TIR is reinstated, but the

. 

. 

. An executed punishment of reduction or forfeiture

. 
of pay may be suspended only within a period of 4
months after the date of execution. . . . .

Since the NJP occurred about 18 months prior to the action to
restore him to  
MMl, a suspension of the reduction in rate was not
allowed by the regulations at the time of the restoration. In
those cases where a reduction is suspended within four months the
individual's record reflects his original effective date and he
retains his original TIR.

2

f.

Petitioner initially applied to the Board in 2000

requesting his original effective date and TIR for, 
application, he contended that the commanding officer's intent
set.aside  the punishment awarded at the 17 March 1997 NJP
was to 
and, in effect, that his 9 September 1999 letter which used the
He further
words 
contended that it does not make any difference if the action
taken by the commanding officer mitigates the punishment Or sets
it aside, because either action would restore his original
l+July 1992 and make him eligible to compete for advancement to
chief petty officer.

rlchanged" and "restored" was poorly worded.

MMI.

 

In that

.

TIR.of

g.

The Board considered and denied Petitioner's case in May

At that time, the Board concluded that since no other

2001.
provision of the regulations fit the circumstances, he was
properly restored to MM1 under the provisions of  
Article 1430-020 and a correction to his record to establish an
earlier effective date of advancement and TIR was not warranted.

MILPERSMAN

,

h.

Subsequently, Petitioner requested reconsideration of

The commanding officer who attempted to restore him to

his case.
MM1 in 1998 has now submitted a letter stating that it was his
intent to suspend the punishment based on Petitioner's
outstanding performance.
He states that the previous commanding
officer Of the FLORIDA was relieved and he did not assume command
until August 1997.
before recommending favorable action.
that the reduction in rate should be suspended.
Commander Submarine Group 9 has favorably endorsed Petitioner's
request for reconsideration,
assigned his original time in rate.

Further, he needed a period of observation
He continues to believe

recommending that Petitioner be

In addition, the

CONCLUSION:,

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
The Board notes that Petitioner's transfer to a new
command prevented the commanding officer from suspending the
punishment within the four month period authorized by the
Given his continuing outstanding performance and
regulations.
the favorable recommendations of the commanding officer and the
group commander the Board concludes that the record should now be
corrected to show that the reduction in rate imposed at the
17
March 1977 NJP was suspended at that time.
Petitioner will be restored to his original effective date of
advancement and his original TIR.

With this correction,

 

The Board further concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future

'3

reviewers will understand why he has been returned to his
original effective date and TIR.
RECOMMENDATION:

a.
That Petitioner's naval record be corrected to show that
the reduction in rate to MM2 imposed at the 17 March.1997 was
suspended for a period of six months and he was never reduced in
rate.

b.

That this Report of Proceedings be filed in Petitioner's

; 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

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
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.

W. DEAN PF
Executive Di