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

 

BUG
Docket No: 1199-07
21 March 2008

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

 
   

Subj: ee 7
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 Jun 07 w/encl
(3) OJAG ltr dtd 13 Feb 08 w/encl
(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 her naval record be corrected by reinstating her to
the June 2005 Limited Duty Officer (LDO) Lieutenant All-Fully-
Qualified-Officers List (AFQOL), removing all documentation of
her removal from the June 2005 AFQOL, showing she was promoted
to lieutenant with a date of rank and effective date of 1
October 2005, and showing she has not failed of selection to

lieutenant.

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,
determined that relief should be granted. 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 which were available under existing law

b. Enclosure (1) was filed ina 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 NUJP’s. The
Secretary of the Navy (SECNAV) had no opportunity to review
“their cases before they were promoted. SECNAV 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 October 2003. No action was taken, in connection with her
promotion to her current grade, because of the NIP awarded

before the promotion was effected.

e. Petitioner was placed on the June 2005 LDO Lieutenant
AFQOL. On 21 November 2005, her promotion to lieutenant was
delayed on the basis of the NUP. On 16 June 2006, her 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 16
March 2006, the Commander, Navy Personnel Command (NPC) approved
the extension of the promotion delay. On 26 July 2006, SECNAV
removed Petitioner from the June 2005 AFQOL. She and the other
two applicants were placed on the January 2007 AFQOL, and all

have had their promotions delayed once again.

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.
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 AFQOL’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 NUJP’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 beén 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 her to the June 2005 LDO Lieutenant AFQOL.

b. That Petitioner’s record be corrected further by
removing all: documentation of her removal from the June 2005
AFQOL and placement on the January 2007 AFOOL.

date of 1 October 2005; and that her lineal precedence be
adjusted accordingly.

f. 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.

oR de (Aan

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

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

Dew.

Ww. KAN PFETL

 

Reviewed and approved:

Donald C. Winter
Secretary of the Navy