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NAVY | BCNR | CY2006 | 05147-06
Original file (05147-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

TRG
         Docket No: 5147-06
         4 December 2007

From: Chairman, Board for Correction of Naval Records
 To:      Secretary of the Navy
Subj RE VIEW OF NA VAL RECORD OF

Ref: (a) Title 10 U.S.C. 1552
Encl :    (1) Case Summary
 (2)      Subjects naval record
1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Navy, filed an application with this Board
requesting that his time in rate (TIR) be adjusted to 1 July
2003.
2.T he Boa rd, consisting of Mr. Mr. a nd Ms. , reviewed Petitioner’s allegation of error and injustice on 20 November 2007 and, pursuant to its regulations, determined that the limited 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’s application was filed in a timely manner.
c.       Petitioner enlisted in the Navy On 17 June 1998 and has apparently served continuously after that date. During his service he was advanced to petty officer second class (MA2; paygrade E—5). According to Petitioner, his TIR was 1 July 2003. On 1 March 2004, he received nonjudicia]. punishment (NJP) for disobedience and drunk and disorderly conduct. The punishment imposed included a reduction in rate to petty officer third class. On 12 July 2004, the commanding officer mitigated the NJP punishment, stating in part, as follows:
Upon reconsideration, i have determined that the portion of the punishment that extends only to the reduction in rate is excessive. . .1 hereby set aside that portion of the nonjudicial punishment and order that [Petitioner] be reinstated to the paygrade of E-5, effective on the date of this letter.

The record shows that Petitioner was again advanced to MA2 on 12
July 2004, which established his TIR as 1 July 2004.
Petitioner reenlisted on 5 October 2004 and continues to serve in
an excellent manner.
d.       Petitioner states that since the commanding officer intended to set aside the reduction in rate as if it never occurred, his TIR should be 1 July 2003. He states, in effect, that he would have been advanced to petty officer first class if the 1 July 2003 TIR had been used to compute his advancement multiple.
e.       Attached to enclosure (1) is an advisory opinion from the Navy Personnel Command, which points outs that, in effect, the decision to restore Petitioner to MA2 was actually a mitigation of the punishment rather than a set aside of the NJP. The advisory opinion also states, that absent unusual circumstances, that the mitigation must occur within four months of the NJP. After weighing the equities of the situation, the advisory opinion recommends that the record be corrected to show that the mitigation occurred within four months of the NJP. Therefore, it recommended that Petitioner’s record be corrected to show that he was restored to MA2 effective on 30 June 2004 and that his TIR be corrected to 1 January 2004. (All individuals advanced before 1 July of each year are assigned a TIR of 1 January).
CONCLUSION:
Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants partial favorable action. In reaching its decision, the Board agrees with the rationale and recommendation contained in the advisory opinion. Therefore, Petitioner’s record should be corrected to show that the NJP punishment was mitigated and he was restored to MA2 effective on 30 June 2004 and his TIR should be adjusted accordingly.
The Board further concludes that this Report of Proceedings should be filed in Petitioner’s naval record so that all future reviewers will understand the reasons for the change in his advancement date and TIR.
RECOMMENDATION:
a.       That Petitioner’s naval record be corrected to show that his NJP punishment was mitigated and he was restored to MA2 effective
2
on iu uune ~uu41.
 b.       That this Report of Proceedings be filed in Petitioner’s naval record.
c.       That further relief 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        BRIAN J. GEORGE
 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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