DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

HD:hd
Docket No: 07085-00
28 August 2001

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj 

:

LT C
REVIEW OF NAVAL RECORD

; MC, US

Ref: (a)

Title 10 U.S.C. 1552

Encl:

Ott 00 w/attachments

(1) DD Form 149 dtd 12 
(2) PERS-3 11 memo dtd 17 Jan 01
(3) BUPERS Ser 833D memo dtd 2 Mar 01 w/enclosure
(4)
(5) Subject’s naval record

PERS-06L6 memo dtd 27 Mar 01

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be
corrected by removing all adverse materials which resulted from his nonjudicial punishment
(NJP) dated 18 June 1999. He further requested removal of the fitness report for 1 February
to 8 July 1999 and the Deputy Secretary of Defense letter of 18 April 2000 which removed
his name from the report of the Fiscal Year 2000 Active Lieutenant Commander Staff
Selection Board. Copies of the contested fitness report and letter are at Tabs A and B,
respectively.

2. The Board, consisting of Messrs. Cooper, Swarens and Taylor, reviewed Petitioner ’s
allegations of error and injustice on 23 August 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.

3. The Board, having reviewed all the facts of record pertaining 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. Petitioner contends that all adverse material in his official record was the result of a

punitive letter of reprimand which was determined to be unjust, in light of the results of a
fact finding investigation, and has since been set aside.

.

(2)) PERS-3 11, the Navy Personnel

In correspondence attached as enclosure 
(NE) office having cognizance over fitness report matters, has recommended
CornLand 
approving Petitioner ’s request to remove the contested fitness report. They stated that the
Commanding Officer, Submarine Squadron Support Unit, Norfolk letter of 13 April 2000 set
aside Petitioner ’s NJP; that the fitness report comments concerning the NJP and the mark in
block 33 ( “Professional Expertise ”) are now considered to be inappropriate; and that they
recommend removing the fitness report, as they cannot determine the mark or promotion
recommendation Petitioner now deserves.

d.

In correspondence attached as enclosure 

(3), PERS-833, the Bureau of Naval

Personnel office having cognizance over officer post-selection board matters, has commented
that on 18 April 2000, they were notified that action had been taken to set aside Petitioner
’s
NJP; that on 18 April 2000, the Deputy Secretary of Defense signed the contested letter and
it was staffed for forwarding to the White House; that on 19 April 2000, they notified the
chain of command, which included the Chief of Naval Personnel ’s legal counsel, that
Petitioner’s NJP had been set aside; that on 20 April 2000, they were notified that the
Deputy Secretary of Defense had signed the letter and it was forwarded to the White House
on 20 April 2000; and that on 24 April 2000, the Chief of Naval Personnel
’s legal counsel
advised them that in discussion with the Chief of Naval Operations legal counsel and the
Secretary of the Navy ’s legal counsel, it was determined that it was too late to change the
language in the letter, and it was also determined that although Petitioner ’s NJP had been set
aside, the misconduct still occurred, so his removal from the promotion board report was still
appropriate. PERS-833 recommends disapproving Petitioner ’s request to remove the letter
which removed his name from the promotion board report. Instead, they recommend
redacting the language pertaining to the NJP and the punitive letter of reprimand. They
specifically recommend striking out or blackening  “For this conduct, [Petitioner] received a
” . ..and did not appeal his nonjudicial
punitive letter of reprimand for dereliction of duty ” and 
punishment. 

”

e.

In correspondence attached as enclosure 

PERS-06L6, the NPC Office of Legal
Counsel, has commented that they recommend favorable action on Petitioner ’s request to
have removed from his permanent record all reference to the NJP which has been set aside,
but do not recommend favorable action on his request to remove the contested letter.

(4), 

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosure 
the following limited corrective action:

(4), the Board finds the existence of an injustice warranting

(2), (3) and 

RECOMMENDATION:

a. That Petitioner ’s naval record be corrected by removing therefrom the following

fitness report and related material:

Date of Report

Reporting Senior

99Ju109

CAP

Period
From

of Report

To

99FebOl

99Ju108

b. That there be inserted in Petitioner ’s naval record a memorandum in place of the

removed report containing appropriate identifying data concerning the report; that the
memorandum state that the report has been removed by order of the Secretary of the Navy in
accordance with the provisions of federal law and may not be made available to selection
boards and other reviewing authorities; and that such boards may not conjecture or draw any
inference as to the nature of the report.

. That his naval record be corrected further by modifying as follows the Deputy

Secretary of Defense memorandum for the President dated 18 April 2000:

(1) From the second paragraph, delete the entire second sentence, which reads as
follows: “For this conduct, [Petitioner] received a punitive letter of reprimand for
dereliction of duty. ”

(2) From the second paragraph, delete the following portion of the third sentence:
“and did not appeal his nonjudicial punishment
” so this sentence as corrected will
read as follows:  “[Petitioner] admitted culpability. 
”

d. That any  other reference to Petitioner ’s NJP of 18 June 1999 be removed from his

naval record.

e. That any material or entries inconsistent with or relating to the Board

recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s

’s record and

f. That any material directed to be removed from Petitioner

’s naval record be returned

to the Board, together with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross reference being made a part of
Petitioner ’s naval record.

g. That the remainder of Petitioner ’s request be denied.

3

.

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.

$ , A-
&+ .i $ 

b

ROBERT D. ZSALMAN
Recorder

JONATHAN S. 
Acting Recorder

RUSKIN

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.

Executive 

Direc

DEPARTMENT OF THE NAV

NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE

MILLINGTON TN 38055-0000

Y

1610
PERS-3 11
17 January 2001

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERS/BCNR  Coordinator (PERS-OOZCB)

Subj:

Ref:

BUPERSINST 16 10.10 EVAL Manual

(a) 
(b) CO, Submarine Squadron Support Unit, Norfolk ltr 1910 SNOO 

Ser/214 of 13 April 00

Encl: (1) BCNR File

1. Enclosure (1) is returned. The member requests the removal of his fitness report for the
period 1 February 1999 to 8 July 1999.

2. Based on our review of the material provided, we find the following:

a. A review of the member’s headquarters record revealed the report in question to be on file.

The member indicated he did desire to submit a statement. PERS-311 has not

It is signed by the member acknowledging the contents of the report and his right to submit a
statement.
received the member ’s statement and the reporting senior
Annex S, paragraph S-8, the member has two years from the ending date of the report to submit a
statement or provide justification acceptable to BUPERS for the delay.

’s endorsement. Per reference (a),

b. The fitness report in question is a Detachment of Individual/Regular report. The member

alleges the fitness report was unjustly placed in his record.

c. Reference (b) set aside the member

’s non-judicial punishment on 13 April 2000. Per

reference (a), Annex S, paragraph S-12, the comments concerning the member
performance trait mark in block-33 are now considered to be inappropriate.

’s 

NJP and his

d. The member proves the report to be unjust or in error.

3. W C recommend removal of the fitness
mark or the member’s promotion re

  report in question,

as we cannot determine the trait

Evaluation Branch

2

DEPARTMENT OF THE NAV
O F  NAV AL  PERSONN

BUREAU 

5720 INTEGRITY DRIVE

MILLINGTON TN 38055-0000

Y

EL

1400
Ser 
2  Mar 0 1

833D/0020

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via 

:

Assistant  for  BCNR Matters, Pers-OOZC

B

Subj 

:

RE
u s

Ref:

(a) NAVPERSCOM 
(b) DEPSECDEF memo
(c) BUPERS 

ltr  1426

ltr 5420 Ser Pers-OOZCB

of 18 Apr 00
Ser

834C/769  of 20

of 5 Feb 01

Jun 00

Encl:

(1) BCNR File
(2) Redacted DEPSECDEF memo of 18 Apr 00

In response to reference (a),

1.
The member requests the removal of reference (b) from his
official service record.

enclosure (1) is returned.

Based on our review of the material provided, we find the

2.
following:

a.

A review of the member's headquarter record revealed

On 18 April 2000

On 19 April 2000, PERS-833

Navy Personnel Command (PERS-833) was

that on 18 April 2000,
notified that on 13 April 2000, Commanding Officer, Submarine
Squadron Support Unit, Norfolk set aside
nonjudicial punishment.
of Defense signed reference (b) and it was staffed for
forwarding to the White House.
notified the chain of command,
Personnel's legal counsel, that LT Fotopoulos' nonjudicial
punishment was set aside.
notified that the Deputy Secretary of Defense signed reference
(b) on 18 April 2000 and it was forwarded to the White House on
20 April 2000.
legal counsel advised PERS-833 that in discussion with Chief of
Naval Operation's legal counsel and the Secretary of the Navy's
legal counsel,
the lan
althoug
the misconduct

It was also determined that
e (b).
nonjudicial punishment was set aside,

still occurred and that removal from the

it was determined that it was too late to change

On 20 April 2000, PERS-833 was

On 24 April   2000,

Chief of Naval Personnel's

which included the Chief of Naval

Sub j

OF LT CONSTANT

PERS-833 was further advised

the member wished, he could petition BCNR to have th

promotion list was appropriate.
that if  
sentence pertaining to the punishment deleted from
2 May 2000,
removal of
Commander

Staff Selection Board Report.
copy of reference (b).

  the memo. O
the President signed reference (b), constituting the
name from the FY-00 Active Lieutenant

Reference 

(c) forwarded

e

n

3.
Recommend disapproving
letter from the President o
his
fro

’ request to have the
States, which removed
utenant Commander Selection Board, removed
ervice  record.

4.

Instead,

recommend the following:

a.

Redact the sentence pertaining to the nonjudicial

Specifically,

punishment and the punitive letter of reprimand from
reference (b).
conduct,
reprimand for dereliction of duty."
appeal his nonjudicial punishment."
as the document to replace reference (b).

Lieutenant

strike out or blacken, ‘For this
received a punitive letter of

Also delete,
Enclosure (2) is provided

"...and  did not

b.

Recommend that the legal counsels of Navy Personnel
Command, Chief of Naval Personnel and Judge Advocate General
also review the matter before a decision is made.

PERS-833's concern is if reference (b) and reference

 

(c) are

5.
removed in their entirety,
be aware that
F
B
L

a subsequent selection board will not
was previously removed from the
ander Staff Promotion Selection
selection board's decision to select

Id  not be a fully informed decision.

Branch Head
Officer Post-Selection Boar
Matter

s

,

rr U.S. Navy

d

2

315

DEPUTY SECRETARY OF DEFENSE

1010 DEFENSE PENTAGON

WASHINGTON, DC 20301-l 010

APR

18 2000

MEMORANDUM FOR THE 

PRESIDENT

SUBJECT: Removal of Name From Selection Board Report

f Defense, I recommend you remove the name of Lieutenant
Fiscal Year 2000 Active Lieutenant Commander Staff Board
10, United States Code, Section 618.

Lieutenant Fotopoulos failed to perform a physical exam on a patient, newly diagnosed as

the Secretary of the Navy recommends that the President remove his name from the selection
board report.

Your signature below will constitute removal of 

selection board report.

Lieuten

ame from the

APPROVED:

President of the United States

May 
-2, 2000
Date
W60934-00

DEPARTMENT OF THE NAVY

WAVY PERSONNEL COMMAND
MILLINOTON TN  
3805%0000

INTEORITY DRIVE

S720 

MAR  

2 

7 2001

MEMORANDUM FOR EXECUTIVE DIRECTOR,  BOARD FOR CORRECTION OF

NAVAL RECORDS

Via:

Assistant For   BCNR Matters, Pers-OOZCB

Ref:

(a)
(b)
(c)

10 U.S.C. 624
SECNAVINST 
DOD memo of   18 Apr

1420.1A of 8 Jan 91

00

Per references (a) and (b),

The Secretary of the Navy may

there is no requirement
1.
that there be adjudication of misconduct prior to the delay
of an officer's promotion.
take such action whenever there is cause to believe that
the officer is mentally, physically, morally, or
professionally unqualified to perform the duties of the
grade for which he was selected for promotion.
evidence is substantiated,
the President of the United States remove the officer's
name from the board report of those officers selected for
promotion.

If such
the Secretary may request that

2.
The case
aside of his
substantiated adverse matter supporting the removal action.

as reviewed after the set
ermined that there existed

e set aside action itself indicated that LT
s innocent of the alleged misconduct.

I recommend favorable action

3.
to have removed from his permanent
the NJP set aside.
his request to remove  

referent

reference
I do not recommend favorable action on

record all

equest
to