D E P A R T M E N T O F T H E  NAVY 

BOARD  FOR  C O R R E C T I O N   O F   NAVAL  R E C O R D S  

2   N A V Y A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

HD: hd 
Docket No:  09826-02 
7 October 2003 

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

Secretary of  the Navy 

REVIEW OF NAVAL RECORD 

Ref: 

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

Encl: 

(1)  DD Form  149 dtd 30 Sep 02 wlattachment 
(2)  PERS-80  memo dtd 4 Feb 03 
(3)  Subject's fax  ltr dtd  15 Aug  03 
(4)  Pers-9 1 1 memo dtd  16 Sep 03 
(5)  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 his failure of  selection for promotion before the Fiscal Year (FY) 03 
Naval Reserve Line Commander Selection Board.  After he applied, he also failed of 
selection by  the FY 04 Naval  Reserve Line Commander Selection Board.  It is presumed he 
also desires removal of  that failure, so as to be considered by  the selection board  that next 
convenes to consider officers of  his category for promotion to commander as an officer who 
has not  failed of  selection for promotion to that grade. 

2.  The Board, consisting of  Mses.  Gilbert and  Schnittman and  Mr.  Pfeiffer, reviewed 
Petitioner's allegations of  error and  injustice on  2 October 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.  Petitioner was removed  from the Inactive Status List (EL) and  restored to active 

status in  the Ready Reserve effective 23 February 2001.  He was eligible to be considered by 
the FY 03 Naval Reseve Line Commander Selection Board, as this promotion board  met on 
25 February 2002, over a year after his removal from the ISL.  In his application he 

contended, in  effect, that he was unable to compete fairly before the FY 03 promotion board, 
because he had  not been participating, since his removal from the ISL, as a result of 
processing to evaluate his physical qualification for service. 

c. 

In correspondence attached as enclosure (2), PERS-80, the Navy  Personnel 

Command (NPC) office having cognizance over active and  reserve officer career progression 
matters, has recommended that Petitioner's request to remove his failure of  selection by  the 
FY 03 Naval Reserve Line Commander Selection Board be disapproved.  They conceded that 
he  "was not  medically qualified and  unable to drill from 23 FEB 01 until APR  02." 
However, they noted that his status in  the Naval  Reserve made him  eligible to be considered 
by  the FY 03 Naval Reserve Line Commander Selection Board. 

d.  Enclosure (3) is Petitioner's rebuttal to the PERS-80 advisory opinion.  In  this 

rebuttal, he argued that he should not have been  put before the FY 03 promotion board, as he 
should not have been  removed  from the ISL until early 2002, when  he was medically cleared. 

e. 

In correspondence attached as enclosure (4), Pers-911, the NPC  office having 

cognizance over Naval  Reserve personnel administration, has commented to the effect that 
both  of  Petitioner's failures of  selection should be removed.  They concluded that his return 
to active status should have been delayed, in  accordance with  their policy, until certification 
of  his medical qualification.  They additionally concluded that had  this change of  status been 
delayed as it should have been,  he would  not have been eligible to be considered by  either the 
FY 03 or the FY 04 promotion board,  so both  failures of  selection should be removed. 
Finally, they  also recommended that Petitioner's naval record be corrected further to show he 
was removed  from the ISL on 27 March 2002, when  NPC  accepted his Ready Reserve 
agreement, rather than 23 February 2001. 

CONCLUSION: 

Upon  review and  consideration of  all the evidence of  record, and  especially in  light of  the 
contents of  enclosure (4), the Board  finds the existence of  an  injustice warranting removal of 
Petitioner's failures of  selection before the FY 03 and 04 Naval Reserve Line Commander 
Selection Boards.  They do not agree with  the Pers-911 recommendation to correct his record 
further to show he was removed  from the ISL on  27 March 2002, rather than 
23 February 2001, because he did not request this, it would  not be remedial, and  it would  not 
be necessary in order to remove his  failures of  selection for promotion.  In view of  the 
above, the Board directs the following corrective action: 

RECOMMENDATION: 

a.  That Petitioner's record be corrected so that he will be considered by  the earliest 

possible selection board  convened to consider officers of  his category for promotion to 
commander as an  officer who has not  failed of  selection for promotion to that grade. 

b.  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. 

c.  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 
Recorder 

JONATHAN S. RUSKIN 
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. 

Executive Director 

DEPARTMENT OF THE NAVY 

NAVY PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON TN 38055-0000 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Via:  Assistant for BCNR Matters  (PERS-OOZCB) 

Subj:  REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF 

USNR, # 

LCD 

Encl:  (1) BCNR File 09826-02 

1.  Forwarded, recommending disapproval. 

2.  LCD-as 
from 23 FEB 01 until APR 02.  However, his status in the Naval 
Reserve was correct as he went before the FY-03 Reserve 
Commander Line Selection Board. 

not medically qualified and unable to drill 

3.  Therefore recommend that his request to remove his failure 
of selection for the FY-03 Reser 
Board be disapproved . 

e Selection 

nd Reserve 

Division 

DEPARTMENT OF THE NAVY 

NAVY PERSONNEL COMMAND ' 

5720 INTEGRCCYDRIVE 

MI WNGTON. TN 380550000 

Pers-911 
16 Sep 03 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Via: 

Assistant  for BCNR Matters  (Pers-OOZCB) 

Encl :  (1) BCNR memo 5420 Pers-OOZCB of 10 Sep 03 

1.  Enclosure  (1) is returned with the following comments and 
recommendations concerning LC 
-petition to have his 
first failure of selecti.on fo 

oined the Naval Reserve in 1995 after serving 
Duty.  He was later transferred to the 

D

h

k

c

C

 to an active status, in order to 

Inactive Status List in 1999 for reasons of inactivity in the 
Naval Reserve pro ram  On 22 February 2001, per his request, we 
transferred L
.participate in the Selected Reserve program.  Later in April 
2001, the Chief, Bureau of Medicine and Surgery, determined that 
he did not meet e 
physical standards for affiliation. 
In June 2001, LCD 
requested a review of his medical 
physical qualification by  the 
record for dete 
Physical kraluation Board.  That board determined in February 
2002 that he was physically qualified for military service.  rt 
was only after 27 March 2002 that we accepted another Ready 
Reserve Agreement, which allowe-o 

drill. 

ydgment, the delay in the final determination of 

physical qualification precluded his timely 
icD* 
participation in the Naval Reseme program, and placed him at an 
unfair disadvantage among his peers for  the'^^-03  Commander 
Selection Board, which resulted in his not being selected for 
promotion.  Had we delayed his transfer back to the Ready Reserve 

f  his medical qualification, as is our 
would not have been eligible for promotional 

For that reason, we support 
even further relief by recommending removal of both failures of 
selection for promotion. 

-04 selection boards. 
s petition and recommend 

4.  To accomplish this correction, we recommend that the Board 
approve a Ready Reserve transfer date of 27 March 2002 vice 
22 February 2001 and the removal of both failures of selection 
for promotion. 

Subj :  REQ 
LCD 

5 .   I 
me at 

0 

,this matter, please contact 

~ e r s o q l  ~ d m i ' n i s  tration ~ivision 

Naval Reserve