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

 

BUG
Docket No: 1197-07
21 March 2008

From: Chairman, Board for Correction of Naval Records

  
 

 

To: Secretary of the Navy
Subj: Nt ee iat
REVIEW OF NAVAL RECORD
Ref: (a) Title 10 U.S.c. 1552
Encl: (1) Counsel brief w/DD Form 149 dtd 20 Nov 06 w/atchs
(2) OJAG ltr dtd 1 gun 07 w/encl
(3) OJAG ltr dtd 13 Feb 08 w/fencl
(4) Counsel ltr dtd 21 Mar 07 w/encls
(5) Counsel ltr dtd 21 May 07 w/encls
(6) Counsel ltr dtd 29 Feb 08 w/encls
(7) Subject’s naval record
1. Pursuant to the provisions of reference (a), Subject,

hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by reinstating him to
the June 2004 Limited Duty Officer (LDO) Lieutenant All-Fully-
Qualified-Officers List (AFQOL), removing all documentation of
his removal from the June 2004 AFQOL, showing he was promoted to

2. The Board, consisting of Ms. Epstein and Messrs. Bowen and
Washington, considered Petitioner’s allegations of error and
injustice on 17 March 2008, and pursuant to its regulations,

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 which were available under existing law
and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.

c. On 4 April 2002, Petitioner and five other officers
received nonjudicial punishment (NJP) for violation of the
Uniform Code of Military Justice (UCMJ), Articles 133 (conduct
unbecoming an officer) and 134 (conduct of a nature to bring
discredit on the armed forces). The offense involved a
conspiracy to use bags of cement to falsify weights of shipments
in connection with do-it~yourself moves from supply school. All
six officers received a letter of reprimand as punishment. One
of the six retired before action was taken concerning his
promotion to lieutenant. Two non-LDO officers were promoted
without delay and without set asides of their NUP’s. The
Secretary of the Navy (SECNAV) had no opportunity to review
their cases before they were promoted. SFECNAV removed
Petitioner and two other applicants to this Board, all three of

whom are LDO’s, from their respective AFQOL’s.

d. Petitioner was promoted to lieutenant (junior grade) on
1 September 2003. No action was taken, in connection with his
promotion to his current grade, because of the NUP awarded
before the promotion was effected.

e. Petitioner was placed on the June 2004 LDO Lieutenant
AFQOL. On 3 August 2005, his promotion to lieutenant was
delayed on the basis of the NUP. On 15 September 2005, his NUP
was set aside. The set aside was effected by a different
officer from the one who had imposed it. However, the officer
who had imposed it concurred that it should be set aside,
because he said he had originally intended the NUP’s as
counseling. On 15 March 2006, the Commander, Navy Personnel
Command (NPC) approved the extension of the promotion delay.
The delay was not extended until after the expiration of the
initial six-month period. On 26 July 2006, SECNAV removed
Petitioner from the June 2004 AFQOL. He and the other two
applicants were placed on the January 2007 AFQOL, and all have

had their promotions delayed once again.

f. Petitioner and the other two applicants contend no
financial gain was intended in connection their moves. They
object to disparate treatment of the officers involved, arguing
that drawing a distinction between LDO’s and non-LDO’s is not
justifiable. They also contend they were promoted by operation
of law, because their promotion delays were extended without any
basis and, in the case of Petitioner only, because his delay was
not extended until after the expiration of the initial six-month
period.

g. Enclosure (2) is the first of two advisory opinions from
the Office of the Judge Advocate General (OJAG) concerning the
three applicants’ cases. This advisory opinion recommended
reconsideration of the applicants’ records, on the basis of the

understanding that SECNAV had removed them from their AFOOL’s
without knowledge that two of the other officers involved in the

Same matter had been promoted, and in the belief that only one
of the three applicants’ NJP’s had been set aside.

h. Enclosure (3) is the second advisory opinion from OJAG,
which recommended denying relief. OJAG stated that additional
documentation supported the conclusion that SECNAV knew two
other officers had been promoted and that all three applicants’
NJP’s had been set aside. OJAG further stated that although

SECNAV did not know the officers promoted were not LDO’s, this
was not a “relevant” or “important” fact, and his not having
known it proves SECNAV did not attempt to distinguish between
LDO’s and non-LDO’s. OJAG concluded the doctrine of
administrative finality applies. Finally, OJAG noted that
federal judicial authority had rejected the concept of promotion

by operation of law.

i. In enclosure (4), counsel advised that each of the three
applicants had been placed on the January 2007 LDO Lieutenant
AFQOL, but their promotions were to be delayed again.

j- In enclosure (5), counsel further advised that each of
the three applicants had received a letter dated 24 April 2007
from NPC informing them that their promotions to lieutenant were
being delayed on the basis of their previous removal from their
AFQOL’s. Counsel argued that these delays were actually based
on the NUP’s that have been set aside.

k. Enclosure (6) is counsel's rebuttal to the second
advisory opinion from OJAG. He disagreed with the assertion, in
both advisory opinions, that the difference between LDO’s and
non-LDO’s is significant for purposes of the applicants’ cases.
He concluded that the applicants’ promotion delays were illegal
because they were based on NUP’s that have been set aside.
CONCLUSION:

Upon review and consideration of all the evidence of record, and

notwithstanding enclosure (3), the Board finds an injustice
warranting the requested relief.

The Board finds that SECNAV, having been confronted with the
fact that two other officers involved in the same misconduct had
been promoted, should have considered himself compelled, asa
matter of equity, to promote the applicants as well. In this
regard, the Board finds it most unfortunate that two of the
officers had been promoted before SECNAV had been given a chance
to act on any of the cases. The Board rejects completely the
notion that the distinction between LDO’s and non-LDO’s could
serve to legitimize the disparate treatment inherent in these
cases. The Board does not condone or minimize the misconduct
committed, but finds it was not serious enough to require
removing the applicants from their AFQOL’s. Finally, the Board
notes the applicants were promoted to their current grade after
they had received NJP, and before the NUP’s had been set aside.

In view of the above, the Board recommends the following
corrective action:

RECOMMENDATION:

 

a. That Petitioner’s naval record be corrected by
reinstating him to the June 2004 LDO Lieutenant AFOOL.

b. That Petitioner’s record be corrected further by
removing all documentation of his removal from the June 2004

AFOQOL and placement on the January 2007 AFQOL.

c. That Petitioner’s record be corrected further to show he

was promoted to lieutenant with a date of rank and effective
date of 1 September 2005; and that his lineal precedence be

adjusted accordingly.

d. That Petitioner’s record be corrected further to show he
has not failed of selection to lieutenant.

e. That any material or entries relating to the’ Board’s
recommendation be corrected, removed or completely expunged from
Petitioner’s record and that no such entries be added to the

record in the future.
4. It is certified that a quorum was
review and deliberations,

JONATHAN S. RUSKIN
Acting Recorder

ROBERT D. ZSALMAN
Recorder

5. The foregoing report of the Board is submitted for your

review and action.
oor ' ‘
LD SS ia Ne qa! 5
W. DEAN PFET ‘

Reviewed and approved:

Donald C. Winter
Secretary of the Navy