DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

HD:hd
Docket No: 02071-02
10 March 2003

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD
Ref:     (a) Title 10 U.S.C. 1552

End:     (1) DD Form 149 dtd 31 Jan 02 w/attachments
(2)      PERS-832B memo dtd 10 Oct 02
(3)      PERS-3 11 memo dtd 20 Jan 03
(4)      Subject’s naval record

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 the special EM1 (pay grade E-6) enlisted performance evaluation report for 12 January to 9 October 2000 and by implication, the EM2 (pay grade E-5) report for 10 October 2000 to 15 March 2001. Copies of these reports are at Tabs A and B, respectively.

2.       The Board, consisting of Mses. Davies and Gilbert and Mr. Bishop, reviewed Petitioner’s allegations of error and injustice on 6 March 2003, 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.       To justify his request, Petitioner says only “Reduction in rate dismissed 28 NOV 01” and “Reduction in rate was reversed by the Commanding Officer [CO].” The only supporting document he provided was the CO, USS ABRAHAM LINCOLN letter dated 28 November 2001, stating that he was the officer who awarded Petitioner NJP on 9 October 2000 for violation of Article 92 of the Uniform Code of Military Justice (UCMJ); that the punishment comprised restriction, extra duties, forfeiture and reduction in rate to E-5 ; and that he was setting aside “that portion of the [NW] extending to reduction in rank.”

c.       The contested special report for 12 January to 9 October 2000 was submitted on the occasion of Petitioner’s reduction to EM2 at NJP. It reflects he received NJP for violation of Articles 92 and 134 of the UCMJ. The uncontested report for 10 October 2000 to 15 November 2001, signed by Petitioner’s department head aboard the LINCOLN and dated 17 November 2001, includes the statement ..... CO’S NJP for violation of UCMJ Articles 92, and 134 overturned at ADM [Admiral] ‘s Mast.” There is no other reference to the NJP in Petitioner’s record.

d.       In correspondence attached as enclosure (2), the Navy Personnel Command (NPC) office having cognizance over enlisted performance has commented to the effect that Petitioner’s request has merit and warrants limited relief. They recommended modifying the contested special report to remove reference to the reduction in rate, because the CO’s letter of 28 November 2001 set aside the reduction, but the NJP itself stands and should remain a matter of record.

e.       In correspondence attached as enclosure (3), the NPC office having cognizance over enlisted performance evaluation reports has commented to the effect that both the special report and the EM2 report ending 15 March 2001 should be completely removed. They noted the statement, in the uncontested report for 10 October 2000 to 15 November 2001, that Petitioner’s NJP was set aside.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board finds the existence of an error and injustice warranting complete removal of the reports for 12 January to 9 October 2000 and 10 October 2000 to 15 March 2001. They conclude that only Petitioner’s reduction in rate was set aside, not the entire NJP. They find the special report for 12 January to 9 October 2000 would not have been submitted, but for the reduction. They further find the EM2 report for 10 October 2000 to 15 March 2001 should be removed as well, as Petitioner would not have been evaluated in this rate, but for the reduction. In view of the above, the Board directs the following corrective action.

RECOMMENDATION:

a.       That Petitioner’s naval record be corrected by removing therefrom the following enlisted performance evaluation reports and related material:
                  Period   of       Report
Date of Report   Reporting Senior         From             To
         00Dec22                 00Jan12  000ctO9
         01Mar15           000ctlO         01Mar15

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b.       That there be inserted in Petitioner’s naval record ONE memorandum in place of both removed reports, containing appropriate identifying data; that such memorandum state that the portion of Petitioner’s performance record for 12 January 2000 to 15 March 2001 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 removed material.

c.       That appropriate corrections be made to the magnetic tape or microfilm maintained by the Navy Personnel Command.

d.       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.

e.       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.

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.


ROBERT D. ZSALMAN        JONATHAN S. RUSKIN
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.





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DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 33055-0000

5420
PERS-832B
10 Oct 02

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION
OF NAVAL RECORDS (BCNR)

Via:     PERS/BCNR Coordinator (PERS-OOZCB)

Subj:

Ref:     (a) CO. ltr 5800 Ser 21/ dated 28 Nov 01

End:     (1) BCNR File 02071-02
(2)      Petitioner’s Microfiche Record

1.       The petition and naval records of subject petitioner have been reviewed relative to his request for removal of derogatory material.

2.       The review reveals that the petitioner did attend NJP on 9 Oct 00 and was awarded reduction in rate to F-S. Although, reference (a) set aside the punishment of reduction in rate, the NJP itself stands and should remain as a matter of record. The special evaluation of 9 Oct 00 provides the only documentation available in the official service record that the NJP took place. Block 2 of that evaluation reflects the petitioner’s rate as EM1. I recommend that this petition be opened to PERS-3ll for opinion. I also recommend limited relief in that Block 43 of the evaluation be modified to remove reference to the reduction in rate to EM2.





                  Technical Advisor to the
Head, Enlisted Performance
Branch (PERS-832)














DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

1610
PERS-311
20 January 2003



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via:     PERS/BCNR Coordinator (PERS-OOZCB)

Subj:

Ref:     (a) CO, USS ABRAHAM LINCOLN ltr 5800 Ser 21/ of 28 November 2001
(b)      PERS-832 memo 5420 PERS-832B memo of 10 October 2002
(c)      BUPERSINST 1610.10 EVAL Manual

End:     (1) BCNR File

1.       Enclosure (1) is returned. The member requested the removal of his performance evaluation for the period 12 January 2000 to 9 October 2000 and removal of the E-5 evaluation from January to October 2001.

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 for the period 12 January 2000 to 9 October 2000 to be on file. It is signed by the member acknowledging the contents of the report and his right to submit a statement. The member did not desire to submit a statement. There is no E-5 report for t he period January 2001 to October 2001 in the member’s record.

b.       The report in question is a Special/Regular report. The member request the reports be removed because his NJP was set aside.

c.       Reference (a) states; “At this time, I hereby set aside that portion of the 9 October 2000 non-judicial punishment in your case extending to reduction in rank”. The member’s NJP was not set aside.

d.       The member’s performance evaluation for the period 10 October 2000 to 15 November 2001 states; “CO’NJP for violation of UCMJ Articles 92, and 134 overturned at ADM’s Mast. Highly recommended for accelerated advancement to Chief Petty Officer.





3.       In view of the above it appears the NJP was set aside. We recommend the report for the period 12 January 2000 to 9 October 2000 and 10 October 2000 to 15 March 2001 be removed from the member” record.

                                                                        Performance
                                                                        Evaluation Branch







































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