DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

TRG
Docket No:
26 January 2003

256-02

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

REVIEW 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.
enlistment member of the Navy,
filed an application with this
Board requesting that his record be corrected by expunging all
references to the nonjudicial punishment (NJP) of 3 May 2000.

The Board, consisting of Mr. Roberts, Ms.  

2.
Shy, reviewed Petitioner's allegations   of error and injustice on
8 January 2003 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

LeBlanc and Mr.

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.

Petitioner's application was filed in a timely manner.

C .

Petitioner reenlisted in the Navy on 23 December 1997
with more than 11 years of active duty on prior enlistments. On
1 May 1998 he reported for duty at the Recruit Training  
(RTC), Great Lakes IL.

Cormnand

d.

Petitioner received NJP on 3 May 2000 from the

commanding officer (CO) RTC for wrongfully making repeated
unwelcome verbal comments of a sexual nature about a seaman's
wife, and maltreating a seaman by making him lick water off a
table.
and a reduction in rate from petty officer first class
6) to petty officer second class (AMS2; E-5).

The punishment imposed was a suspended forfeiture of pay
(AMSl; 

 

E-

e .

In a special performance evaluation for the period 16

November 1999 to 3 May 2000,
marks of 1.0 in the categories of equal opportunity and military
bearing/character, and  
usignificant  problems".
The evaluation
comments state, concerning the NJP, as follows:

Petitioner was assigned adverse

Evaluation submitted due to Commanding Officer's

NJP'conducted 3 May 2000.
guilty of violating the Uniform Code of Military
Justice Articles 92 and 93 and subsequently reduced in
rate from 

(Petitioner) was found

AMSl to 

AMS2.

. 

. 

. (Petitioner's) lack of judgment resulted in a
. 
signification breech (sic) of Navy Core Values, and
good order and discipline.

f.

On 25 September 2000,

with the subject line stating
Petitioner's case.
set aside the reduction in rate imposed at nonjudicial
punishment.f'
privileges, and property affected by virtue of the execution of
this punishment shall be restored.

The letter further stated that all rights,

Paragraph one of the letter states  

PUNIHSMENT" in

the CO, RTC submitted a letter
"SET ASIDE OF NJP  

"1 hereby

g.

Petitioner reenlisted for five years on 15 May 2001 and

continues to serve in an excellent manner.

h.

In his application, Petitioner requests that the NJP be

Attached to enclosure (1) is an advisory opinion from

removed from his record because the CO set aside the punishment
and ordered that all rights, privileges and property be restored
to him.
the Navy Personnel  
entries concerning the reduction in rate be removed from the
Court Memorandum (NAVPERS  
1070/607 remain in the record.

Command  that essentially recommends that all

1070/607), but that the NAVPERS

i.

The Board is aware that if there is no punishment

remaining, then there can be no NJP.
portion of the punishment showing that he received a suspended
forfeiture of pay still remains even if the reduction in rate is
expunged.

However, in this case, that

j.

Regulations, as they apply to Petitioner's situation,

allow for the submission of a special performance evaluation
if it is necessary to document an NJP in a timely manner,
withdraw a recommendation for advancement or to document a
reduction in rate.

CONCLUSION:

Upon review and consideration of all the evidence of record the

2

Board concludes that Petitioner's request warrants favorable
Although the subject line of the CO's letter states that
action.
the NJP punishment was being set aside, it is clear from the text
of the letter that the CO was only referring to the reduction in
rate and it does not mention the suspended forfeiture portion of
the punishment.
agrees with the recommendation contained in the advisory opinion
that the NJP documentation should remain in the record.
the words
deleted from the punishment awarded section of the NAVPERS
1070/607.

\\reduction  to next inferior pay grade,, should be

Since there is a remaining punishment, the Board

However,

Concerning the performance evaluation, the Board believes that it
should remain in Petitioner's record because it removes his
recommendation for promotion and it was necessary to document the
NJP in a timely manner.
performance evaluation should be corrected to reflect that he was
not reduced in rate at the NJP.

However, the Board concludes that the

RECOMMENDATION:

That Petitioner's naval record be
a.
the punishment awarded section of the
May 2000 the words "REDUCTION TO NEXT

corrected by deleting from
NA.ERS 
INFERIOR PAY GRADE'.

1070/607 dated 3

That Petitioner's performance evaluation for the period 16
b.
November 1999 to 3 May 2000 be changed by adding a period after
the words "Articles 92 and  
subsequently reduced in rate from  

93' and deleting the words  

AMSl to 

AMS2.'

"and

C . That any material 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
material be added to the record in the future.

d. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with 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.

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

_&

ALAN E. GOLDSMITH
Acting Recorder

3

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.

Executive D

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