DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100

 

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Docket No. 03295-07
27 January 2008

Chairman, Board for Correction of Naval Records

   

From:

To: secretary of the Navy

Subj: oe TS
REVIEW OF NAVAL RECORD

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

Mar (7% seat b acctn

Bncl : (1) DD Form 149 data 7)
(2) PERS~-311 memo dtd |e dul ¢
(3) PERS-832 memo dtd 22 Aug OF wlety
(4) PERS-0002 ltr dtd 28 Dec Uy
(5S) PERS~-N134 memo dtd 24 Oct 07
(6) Subject's ltr dtd 10 Jan 08 w/enclosures

(7) 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 removing the enlisted performance
evaluation report for 16 March 2005 to 15 March 2006. 2A copy of
this report is at Tab A. This report is not in his Official
Military Personnel File (OMPF). He further requested that his
reenlistment code be changed from RE-4 (not eligible for

reenlistment without prior approval of the Chief of Naval
Personnel) to RE-1 (eligible for reenlistment) and that he be
reinstated to active duty in the U. gs. Navy with no break in
service. He was discharged on 19 May 2006 by reason of "Non-
retention on Active Duty," with a corresponding separation code
of “JGH" (copy of DD Form 214 ("Certificate of Release or

Discharge from Active Duty") at Tab B).

2. The Board, consisting of Mses. Epstein and LeBlanc and Mr.
Washington, reviewed Petitioner's allegations of error and
injustice on 25 January 2008, and pursuant to its regulations,

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. In enclosure (2), PERS-311, the Navy Personnel Command

(NPC) office with cognizance over performance evaluations,
commented to the effect that the contested adverse performance
evaluation report is valid, but that it does not appear in

They recommended that he be asked to provide
that he submit a

grther action regarding

Petitioner's OMPF.,
a signed copy for inclusion in his QMPF;

this report be taken.

 

c. In enclosure (3), PERS-832, the NPC Enlisted Performance

and Separations Branch, commented to the effect that no relief
is recommended concerning the contested performance evaluation

report or the denial of Petitioner’s reenlistment.

d. In enclosure (4), PERS-00J2, the NPC legal office,
effectively concurred with enclosures (2) and (3), stating
"Whether there is evidence to substantiate [Petitioner's]

allegations of reprisal [for having filed a complaint in 2005
under Article 138, Uniform Code of Military Justice, concerning

the reporting senior's failure to forward his humanitarian
reassignment package] is speculative" and “...given the absence
of evidence to support [Petitioner's] contentions, any relief

granted should be based on equity."

e. In enclosure (5), PERS-N134, the Navy Equal Opportunity
Office, commented to the effect that if Petitioner's parenthood
certificate situation is resolved, he should be allowed to
reenlist. They stated they were convinced Petitioner's
reporting senior failed to provide a work environment that
fostered equal opportunity; that they believed Petitioner
received ineffective leadership and mentoring from him; that it
is quite possible Petitioner's bar to reenlistment, the
contested adverse report, resulted from the Article 138
complaint; and that the reporting senior's recommendation

against Petitioner's reenlistment by reason of "overall
performance and re-occuring [sic] dependency care plan issues"

could have been his "subtle approach to taking reprisal action"
against Petitioner.. Although the PERS-N134 opinion was
submitted before PERS-00J submitted enclosure (4), enclosure (4)

does not acknowledge it.

f.
that he deserved to be recommended for reenlistment.

that he should not have been discharged without an
administrative separation board; but since he was discharged at
the expiration of his active obligated service, he had no board

In enclosure (6), Petitioner reiterated his position
He argued

entitlement.

CONCLUSION:

Upon review and consideration of all the evidence of record,
notwithetanding enclosures {2} through (4), and especially in
light of enclosure (5), the Board finds the existénce of an
lrjustice warranting corrective action to show Petitioner was
not discharged, but rather extended for two years; and block
filing of the contested performance evaluation report in his

   

naval record.

While the Board does not consider it appropriate to usurp the
function of determining whether Petitioner was fully suitable
for reenlistment, it is satisfied he should not have been
discharged. Accordingly, the Board finds his record should be
corrected to show he was not discharged, but rather executed a
two-year extension, which will give him an opportunity to
demonstrate he should be permitted to reenlist at the end of the
extension. The Board notes this will effectively remove the
reenlistment code of RE-4, as it will require removing the DD
Form 214 reflecting Petitioner's discharge and the reenlistment

code.

In views of the above, the Board directs the following
corrective action: .

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show he
was not discharged on 19 May 2006, but rather executed a two-
year extension of enlistment; and that the DD Form 214

reflecting the discharge of 19 May 2006, together with any
service record page 13 ("Administrative Remarks") entry dated on

or about 15 March 2006 reflecting a recommendation against his
retention or withdrawal of his recommendation for advancement,

be removed accordingly.
b. That Petitioner's enlisted performance evaluation report

for 16 March 2005 to 15 March 2006 dated 15 March 2006 and
nant etait ee uubiewieies filed in his naval

 

signed by git
record.
c. 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.

d. 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

Dr ctKgld. (rat —

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Acting Recorder

matter.

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.

lw oon

W. DEAN PFEILNF
Executive Dikdac