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NAVY | BCNR | CY2005 | 02498-05
Original file (02498-05.rtf) Auto-classification: Approved
                                             DEPARTMENT OF THE NAVY
                   BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 HD:hd
Docket No. 02498-05
15 September 2006
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD
Ref:     (a) 10 U.S.C. 1552
End:     (1) DD Form 149 dtd 21 Mar 05 w/attachments
 (2)      PERS-4832B memo dtd 21 Jun 05 w/enclosure
(3)      PERS-311 memo dtd 18 Oct 05
(4)      PERS-4811E9 memo dtd 21 Oct 05
(5)      CHADMIN, NRD ATL ltr dtd 12 Sep 06
(6)      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 haval record be corrected by modifying the enlisted performance evaluation report for 16 March 2001 to 15 March 2002 (copy at Tab A) to omit the bullets concerning nonjudicial punishment (NJP) and withdrawal of recommendation for advancement. Petitioner also requested reinstatement to petty officer first class. He was advanced to that grade effective 16 December 2005. By action of the Navy Personnel Command (NPC), the contested report has been removed and replaced with another report for the same period, provided by Petitioner (copy at Tab B), identical to the contested report except it shows Petitioner compared with 31 peers instead of none.
2.       The Board, consisting of Ms. LeBlanc and Messrs. Chapman and Swarens, reviewed Petitioner’s allegations of error and injustice on 30 March 2006, and pursuant to its regulations, determined that additional information was needed as to when the NJP was awarded. On 15 September 2006, the Board 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 the contested report reflects an NJP that occurred after the Reporting period; that no evaluation report was written removing his recommendation for advancement; that only the commanding officer (CO) may remove a recommendation for advancement; and that an evaluation report removing the member’s recommendation for advancement must have a promotion recommendation mark of “Significant Problems” (lowest of five possible) and signature by the CO, while the contested report is signed by the executive officer (XO) and marks Petitioner “Promotable” (third best).
c.       The report on file in Petitioners record, like the contested report, was signed by the XO on 15 March 2002. It also assigned a promotion recommendation of “Promotable.” Block 43 (“Comments on Performance”) also included the following statements:
(1)      “Failed most recent Physical Readiness Test.”
(2)      “[CO] awarded [NJP] 02MAR02. Awarded forfeiture of pay and reduction in rate (suspended for 6 months)

(3)      “Recommendation for advancement withdrawn this date.”
d.       Petitioner provided a court memorandum (copy in enclosure (1)) reflecting that the incident for which he received NJP was on 18 February 2002, which was during the reporting period in question; but it also shows the NJP was on 22 March 2002, after the period, rather than 2 March 2002 as the report for that period states. NPC has filed the court memorandum in Petitioner’s record.
e.       Petitioner was selected for advancement to petty officer first class from the September 2001 advancement examination (Cycle 172). Per Bureau of Naval Personnel Instruction 1610.10, enclosure (2), paragraph B-6e.(2), “The [CO] must sign any report which withdraws a recommendation for enlisted advancement after advancement authorization for the member has been received.”
f.       The XO gave Petitioner a special evaluation report (copy at Tab C) for 16 March to 28 August 2002, stating “Special Evaluation submitted for recommendation [sic] of advancement.”
g.       In correspondence attached as enclosure (2), PERS-4832B, the NPC office having cognizance over enlisted performance and separations, expressed the belief that Petitioner’s objective is to cause his record not to reflect the NJP at all. They said an NJP date error in the report for the pertinent period “is recognized.” They noted no detriment or negative action is supposed to come to an applicant to the Board. They recommended forwarding the case to the Enlisted Career Progression Branch (PERS-48l), the Performance Evaluation Branch (PERS-311) and the Records Management/Policy Branch (PERS-312E) for opinions on advancement, performance evaluation and document filing issues.
h.       In correspondence attached as enclosure (3), PERS-311, the NPC office having cognizance over enlisted performance evaluation, has commented to the effect that the NJP occurred after the pertinent reporting period, so it should not have been mentioned in the report for that period; that Petitioner’s advancement was withheld, not withdrawn, so the CO did not have to sign the report at issue; that the promotion recommendation of “Promotable” is incorrect, as the report says Petitioner’s advancement recommendation was withdrawn; and that it should be “Significant Problems.” Finally, they said they had placed a memo in Petitioner’s record to indicate his “correct” promotion recommendation, but no such memo appears in his record.
i.       In correspondence attached as enclosure (4), PERS-48llE9, the NPC office having cognizance over enlisted promotions, concurred with removing reference to the NJP from the report in question, but recommended the special evaluation report be supplemented by a report mentioning the NJP. While the report in question indicates Petitioner’s advancement recommendation was withdrawn, their verification with the Naval Education and Training, Professional/Development and Technology Center indicated his advancement from Cycle 172 actually was withheld, not withdrawn. They concurred with PERS-311 that when advancement is withdrawn, the member may not be marked “Promotable” but must be marked “Significant Problems.” They stated NJP is just one of the many reasons an advancement recommendation may be withdrawn. They further stated that Petitioner’s command did not follow proper procedures for advancement withdrawal, but Petitioner acknowledged the command’s action by signing the evaluation. They concluded that the special evaluation report indicates Petitioner’s advancement recommendatioh had been withdrawn. Finally, they recommended endorsement from the CO and/or XO to determine whether the command intended to withdraw or withhold Petitioner’s advancement recommendation for Cycle 172.
j.        Enclosure (5) is the additional documentation obtained at the Board’s direction. It recommends removing the statement concerning withdrawal of recommendation for advancement, citing the incorrect documentation used to remove advancement. It does not clarify when the NJP was awarded, but notes the “conflicting data.” Finally, it recommends backdating Petitioner’s advancement to the March 2005 examination, but he does not request backdating, and he was advanced from the March 2005 examination.
CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosures (2) through (5), the Board finds the existence of an error and injustice warranting the following limited corrective action:

RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected by modifying as follows block 43 of the enlisted performance evaluation report for 16 March 2001 to 15 March 2002, dated 15 March 2002 and signed by Commander J. B. Dykes, USN:
(1)      Remove the next to last bullet, which reads as follows:
 [CO] awarded [NJP] 02MAR02, Awarded forfeiture of pay and reduction in rate (suspended for 6 months)
(2)      In the last bullet, change “withdrawn” to “withheld,” so the bullet as amended will read as follows:
 “Recommendation for advancement withheld this date.”
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.
d. That the remainder of Petitioner’s request be denied.

 4.       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.



          W. DEAN PFEIFFER
         Executive Director      






















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