DEPARTMENT OF THE NAVY
                    B0ARD FOR CORRECTION OF NAVAL RECORDS
                                2  Navy Annex
                          WASHINGTON DC 20370-5100

                                                        HD:hd
                                                        Docket No. 06307-05
                                                        13 October 2005

      From: Chairman, Board for Correction of Naval Records
      To:   Secretary of the Navy

      Subj: AT2   JR., USN, REVIEW OF NAVAL RECORD

      Ref:  (a) 10 U.S.C. 1552

      End:  (1)     DD Form 149 dtd 1 Aug 05 w/attachments
              (2) PERS-4832B memo dtd 30 Aug 05 w/enclosure
              (3) PERS-311 memo dtd 12 Sep 05
              (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 reinstating him to AT2 (pay grade E-5). This relief has
      been effected by Petitioner’s commanding officer (CO) ‘s action of 22
      June 2005 (first supporting document with Petitioner’s application at
      enclosure (1)). Petitioner also impliedly requested removing all
      material reflecting the vacation of suspension of his reduction from
      AT2 to AT3 (pay grade E-4), to include removal or modification of the
      enlisted performance evaluation report for 16 March to 10 September
      2002. A copy of this report is at Tab A.

      2.    The Board, consisting of Messrs. Caron, Lippolis and Mann,
      reviewed Petitioner’s allegations of error and injustice on 6 October
      2005, 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 apply3.flg to this Board, 2etitioner exhausted all
administrative remedies available under existing law and regulations within
the Department of the Navy.

      b.    On 6 August 2002, Petitioner received nonjudicial punishment
(NJP) for violating a housing barment order on 25 July 2002. The punishment
awarded was reduction to AT3, suspended for six months. On 31 July 2002,
the base CO lifted this barment order (second supporting document with
Petitioner’s application at enclosure (1)). On 10 September 2002,
Petitioner’s officer in charge (OIC), who was not aware the barment order
had been lifted, vacated the suspension of reduction on the mistaken ground
that Petitioner had again violated the order. On 22 January 2005,
Petitioner’s then current OIC at the same station set aside the vacation of
suspension of the reduction.

      c.    The performance evaluation report in question, for 16 March to
10 September 2002,’ is a special report. Block 43 (“Comments on
Performance”) says it was “submitted due to member’s reduction in rate.”
Petitioner received two adverse marks, “1.0” in block 36 (“Military
Bearing/Character”) and “Significant Problems” in block 45 (“Promotion
Recommendation -Individual”). Block 43 also includes the following
unfavorable narrative:

      *36 - Requires constant supervision. His personal life severely
      inhibits his ability to perform his assigned duties. OIC’S NJP on 6
      August 2002 for violation of UCMJ [Uniform Code of Military Justice]
      Article 92. Awarded reduction in rate (suspended for 6 months).
      Concluded on 6 August 2002. Vacated on 10 September 2002.

      Member shows no desire for the additional responsibility as a
      Collateral Duty Inspector...

      d.    In correspondence attached as enclosure (2), PERS4832B, the Navy
Personnel Command (NPC) office having cognizance over enlisted performance
and separations, acknowledged that the vacation of suspension of the
reduction had been set aside. They stated that documentation of the NJP
must remain in Petitioner’s record, but mention of the vacation action
should be deleted.

      e.    In correspondence attached as enclosure (3), PERS-311, the NPC
office having cognizance over performance evaluation, stated that the OIC
action of 22 June 2005 set aside















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Petitioner’s reduction. Technically, this action did not set aside the
reduction, which had been suspended, but set aside only the vacation of
suspension of the reduction. They recommended that the performance
evaluation report in question be modified by deleting the following from
block 43:

      Evaluation submitted due to member’s reduction in rate.

      *36 - OIC’s NJP on 6 August 2002 for violation of UCMJ
      Article 92. Awarded reduction in rate (suspended for 6
      months). Concluded on 6 August 2002. Vacated on
      10 September 2002.

Finally, they stated that if the Board recommends removing the report at
issue, they have no objection.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding the PERS-311 recommendation to modify the performance
evaluation report in question, the Board finds the existence of error and
injustice warranting complete removal of this report. The Board
particularly notes that this special report was submitted on the date of
the vacation action, and that it indicates it was submitted because of the
vacation of suspension of Petitioner’s reduction. Since that vacation was
effected in error and has been set aside, the Board finds the special
report should not have been submitted at all. The Board notes that merely
modifying the report, as PERS-3l1 recommends, would leave both adverse
narrative and marks. In any event, the PERS-311 recommendation to delete
not only the reference to the vacation action but also the reference to the
NJP and the suspended reduction is not supportable, as the set aside
applied only to the vacation of suspension. 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 report and related
material:
      Period of Report
Date of Report   Reporting Senior       From To
2 Oct 02    CDR  USN   16 Mar 02  10 Sep 02








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     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 such 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.

     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. 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 38055-0000


                                                             5812
                                                             PERS-4832B
                                                             30 Aug 2005

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

Via:  PERS/BCNR Coordinator (PERS-3LC2)

Subj: REQUEST FOR COMMENTS AND RECOMMENDATION ON PETITION ICO


End:  (1) BCNR File 06307-05
      (2) Petitioner’s CD Service Record

1.    The petition and naval records of subject petitioner have been
reviewed relative to his request for reinstatement to E-5.

2.    The review reveals that petitioner’s vacated reduction in rate has
been set aside by his Officer-in-Charge. Action should have been taken
immediately at the local level by the cornmand/PSD to restore
pay/allowances by submission of a corrected NAVPERS 1070/607 to the Navy
Integrated Personnel System (NSIPS). PERS 4832 has no capability to
correct/adjust pay and allowances. Documentation recording the NJP of 6 Aug
02 must remain in the service record. However, mention of the vacated
reduction in rate should be redacted as specified by the set aside letter.
Therefore, favorable action on this petition is recommended.





                                        Technical Advisor to the
                                                 Head, Enlisted Performance
                                                 And Separations Section
                                  (PERS-4832)


































                       ENLISTED PERSONNEL INFORMATION

RATE  DATE  TIR/LIM
PROS PRES AT3
•PREV AT2
RATE-AUTH 7
RATE-IND 3
SPC- CODE
02091 0
010616
02091 0
AEAZ9
CED
EAOS
SEAOS
NUM OF
TERM 6
PAD 0601 AA
      t~ AT3
********    ENLISTMENT STATUS
      011029     EDLN 061130
      071028     EDLNREA HYT
      071028     SCHOLEXT
      ENL 2 OTHEREXT
         EXTSOPER
CITZ CA

*********   NAVY LOSS DATE /LOSS
CHG /GODE
DATE ********

DOD /CODE
RQC
*********   SECURITY DATA (OAF) ******** INV INV-DT AGNCY ELIG CLANG CLRNC-
 DT
                              LANGUAGES *******
DOD CODE LISTENING READING SPEAKING WRITING SOURCE LANG-DTE


UIC L 46964 RECD 020121
                      ******* CURRENT ACTIVITY *******
NAME CV/CVN SEA OPDT   AGO 100 S/S 2    DNEC1 6607 DNEC2
TRDT  AIP-AMT $  DESIGNATOR A     SPECAT



PLEASE ENTER NEW SSN OR PROGRAM FUNCTION
                                                                               0
                                                                               5
                                                                               3
                                                                               4



  LUP 238/05

RADO MO
RADO DAY
EREN
LOST TIME
TAR /TE MAC
LIMDU
                               PSI) LEMOORE CA
      P601-7R
      COURT MEMORANDUM
2.    511fF OR STATON AND LOCATION


PERSSUP DET NAS LEMOORE CA
4 TYPE CIF COURT S. DATE OF COUThMAST
         (YYMMMODI
02AUG06
S.    MODIFICATION OF

      ACTION

[]
14.   TO

AT3
18 NO. MONTHS


21.   CONSENT TO CNECKAGE
NJP
O~9/25/02 WED 08:08 FAX 20999R2!96

   ‘JUPERS U$F ONLY



   1 DATE S/-JMITTFD (YYMMMOD)


                                   O2SEP1
   3 GATE OF REFERRAL
                                 (YYMMMPfl)


   7 DAwOrAcrIop
                                  )YYMMMOO1

                                   02AUG02
   12.      RATE ADJUSTMENT


   [xi
   16 FORFEJTURE


   []
   P3 lINE



   ii
   25 DETFI.iHOro


   1]
   23 OESE.RTON MARIO RLMOVEO


   [I
   32.      F~F1E.TR1AL CONFINEMENT
    FROM:   IYYMMMDO(


   36.      CONFINEMENT ORDERED FROM (YYMMMDD(




   40 CHANGE E1~OS TO
                                 (YYMMMDCi~
8.    REPORT OF ACTION



[1
1).   FROM


AT2
17.   MONTHLY AMOUNT




20.   AMOUNT





26 MONTHLY AMOUNT


311 ADJUDGED


[ I
33.   PRE-TR1AL CONFINEMENT TO: (YYMMMDO)



37.   CONF. COMPLETED TO )YYMMMDO)




dl. CHANGE EXP ENL. TO
 IYYMMMOO)
             E~jooi

                             UPDATED VIA LINES D
S.    UCMJ ARTiCLE(S)
092
10. CORRECTION TO

                              PREVIOUS 1070/601

I I.
15. TIR (YYMMMDD)

~2~Mic
ii.   DATE OF SUBMISSION ON 1070/607 MOD. OR CORRECTED IYYMMMDO)












                                   24. NO.
 lATHS

   45.
   42 SYNOPSIS OF OFFENSE(S), DATE(S), AND SENTENCE ADJUDGED (ALSO
   AMPLIFYING REMARIOS~ MAY IdE CONTINUED ON REVERSE)

   CO’S NIJP HELD 02AUG06.
   VUCMJ ART 092: FAILURE TO OBEY A WRITTEN ORDER.
   PUN AWARDED: RIR TO THE NEXT iNFERIOR RATE OF AT3 SUSPENDED FOR 6
   MONTHS.

   PUN. VACATED AS OF 02SEP10 CHARGE ART 92: FAILURE TO OBEY A WRITTEN
   ORDER. RIR TO NEXT INFERIOR PAY GE~ADE OF AT3 INSTATED.






   ‘1/,11 1 Lt~ 1” 7.’ (7 .751) 01)1601 05 7.oNvL.oo~. SUPERVSOO/Y, Oil 01
   I/ElI AU 1540111 IY INCS.1J04N13 AC lION UNOER
   A/i /ICl.l:)i 7.6 5)6. .7. ‘.s. P. (:5 4~ 1)5) 15 I~l OR 0). LJCMJ•
   (ALSO ANY APPIJsL)
      43. 1075/607 OTD )YYMMMOO)  44. AUTHORITY TYPE


                    02SEP11
      46. )SIGNAT      ~     HANK/GRADE
      I).   (~ F)PNT7USNBYDIRO1C


                                               46. RATE


                               . AT3
      50. SSN    61 BRANCH/CLASS


       FORWARD SIGNED ORIGiNAL TO BUPERS
      22. DOESNOTCONSENT     23. MTHAMOUNT
      TO CHECKAGE      OF CHECKAGE
[1    [1
27. NO. MONTHS   21. DETENTION REFUND DATE )YYMMMDO)


31. ADJUDGED AND DISAPPROVED


1]
34. DAYS LOST TiME     36. DAYS L.OST TIME
      (30 DAY BASIS)   ,     (DAY FOR DAY)
36. DAYS LOST TiME     39. DAYS LOST TIME
      (30 DAY BASIS)         (DAY FOR DAY)










































                           DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                            5720 INTEGRITY DRIVE

           MILLINGTON TN 38055-0000

                                                1610
                                                             PERS-311
                                                                  12
September 2005


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

   Via:     PERS/BCNR Coordinator (PERS-3LC2)

      Subj:

   Ref:     (a) BUPERSINST 1610.10 EVAL Manual
        (b) OIC, Aircraft Intermediate Maintenance Detachment, Lemoore ltr
           1910 Memo 00 Of 25 June 2005

   End:     (1) BCNR File

   1. Enclosure (1) is returned. The member requests corrections are made
   to his performance evaluation for the period 16 March 2002 to 10
   September 2002.

   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. It is signed by the member acknowledging the
   contents of the report and his right to submit a statement. The member
   indicated he did desire to submit a statement. PERS-3 11 did not receive
   the member’s statement and reporting senior’s endorsement.

      b.    The report is a Special/Regular report. The member requests
   corrections are made to his performance evaluation due to his NJP being
   set aside.

      c.    Reference (a) set aside that portion of the member’s NJP
   pertaining to his reduction in rate. In view of the member’s reduction
   in rate being set aside we recommend the following be deleted from block-
   43 of the report in question:

               “Evaluation submitted due to member’s reduction in rate”.

               *36 — OIC’s NJP on 6 August 2002 for violation of UCMJ
               Article 92. Awarded reduction in rate (suspended for 6
               months). Concluded on 6 August 2002.Vacated on 10 September
               2002”.

      d.    The member proves the report to be in error.
3.    We recommend the member’s record remain unchanged except as indicated
above, however, if the board recommends removal of the report, we have no
objections to remove the report.






                                                   Performance
                                                   Evaluation Branch

































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