DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

SMW
Docket No: 5812-07

13 May 2008

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

 

Subj: REVIEW OF NAVAL RECORD OF i uIRllegIigeepiegrsp:
Ref: (a) 10 U.S.C. 1552

Encl: (1) Case Summary and advisory opinions
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a

former member of the Navy Reserve applied to this Board
requesting removal and replacement of two fitness reports, that

he be provided a fitness report for a missing period, a change
to the reason for separation, removal of erroneous accusations,

and an honorable discharge vice the general discharge that was
issued on 2 August 2005.

 

2. The Board, consisting of Mr -WORMIRES vr. and
—_ ae Petitioner's allegations of error and
injustice on 7 May 2008, and pursuant to its regulations,

determined that the partial 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 ina timely manner.

c. On 1 October 2003, Petitioner affiliated with a drilling
reserve unit.
d. Petitioner requested active duty for training (ADT)
orders to attend a conference in Hawaii during the period
24 to 29 February 2004, and executed the travel orders.
He also requested ADT orders during the period 16 to
21 April 2004, to attend training at Camp Lejeune. However,
after arriving at Camp Lejeune, he chose not to attend
training and remained in the area until his return flight.
On 6 May 2004, while residing in Europe, he requested transfer
to the inactive reserve due to personal reasons, but his

request was denied.

e. An adverse periodic detachment of reporting senior
regular fitness report was submitted with an ending date
of 31 October 2004. Another fitness report ending
30 September 2004, that did not have Petitioner's signature,
was also submitted. A copy of these reports are at Tabs A

and B.

£. An investigation was subsequently initiated by the
Criminal Investigation Division (CID) regarding alleged travel
fraud. On 15 November 2004, CID concluded the investigation,
which indicated that Petitioner committed fraud by submitting

false claims.

g. On 22 February 2005, Petitioner's commanding officer
requested that he show cause for retention and be
administratively separated under other than honorable (OTH)
conditions by reason of unsatisfactory drill participation in
the Navy Reserve. Petitioner was subsequently transferred to
the inactive reserve due to his inability to maintain
Satisfactory drill attendance.

h. On 17 May 2005, the separation authority notified
Petitioner of administrative show cause proceedings by reason
of misconduct, specifically, unauthorized absence, failure to.
obey a lawful order, making false official statements, fraud,
and conduct unbecoming an officer, and by reason of substandard
performance of duty due to failure to demonstrate acceptable
qualities of leadership required of an officer of his grade and
failure to conform to prescribed standards of military
deportment. In connection with this processing, he

acknowledged that the least favorable characterization of
service would be under OTH conditions and that he could submit

a qualified resignation in lieu of administrative separation.
On 24 June 2005, he submitted his qualified resignation, and in
doing so acknowledged that if accepted he would receive a
general discharge. He subsequently submitted his
acknowledgement of rights in which he waived the right to a
Board of Inquiry (BOI). The Assistant Secretary of the Navy

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accepted his qualified resignation and directed a general
discharge by reason of misconduct. On 2 August 2005, he was so
discharged.

1. In his application, Petitioner states in essence that his
discharge is inequitable because his former unit sought
retribution for his open participation in an investigation and
that he does not feel that he received thorough counsel. He
further states that his personnel record was excellent before
this incident, and unprofessional and unjustified actions taken
against him resulted in the subsequent discharge from the

reserves.

j. Attached to enclosure (1) is an advisory opinion from the
Navy Personnel Command (NPC) Fitness Report Branch (PERS~311),
regarding the removal of Petitioner's fitness report for the
periods of 12 January to 31 October 2004, and 6 June to
30 September 2004, replacement with unbiased reports, and
providing a fitness report for a missing period, which states,

in part, as follows:

 

...The first fitness report in question is an
adverse Periodic/Detachment of Reporting
Senior/Regular report ending 31 October 2004.
[Petitioner] alleges the fitness report is
based on erroneous accusations and should be
replaced by a [sic] unbiased report.

.. A review of [Petitioner's] headquarters

record revealed the report in question to be on
file. It was signed by the reporting senior on

9 September 2004, but was annotated "Certified
Copy Provided" in block 46, Signature of Individual
Evaluated. Per [Bureau of Personnel Instructions
(BUPERS) 1610.10] an adverse report must be signed
by the member or the report be annotated "Member

refused to Sign" in block 46.

 

...Fitness report was returned to the reporting
senior on 27 February 2005 and a signed or properly
annotated report has never been received from

the reporting senior or [Petitioner] to correct

the error found on [Petitioner's] report.

...the uncorrected report in question was
accepted as originally submitted to
[Petitioner's] record, attached with an
[sic] NAVPERS [Navy Personnel] 1616/23
(Memo) over 9 months after the report had
been issued to [Petitioner].

...Selection Boards are briefed that reports,
which have been rejected and returned for
correction, are accepted with a memorandum
action after 90 days when no response has
been received.

...the second fitness report in question is

a Non-Observed/Regular report ending

30 September 2004. The fitness report was
accepted erroneously to [Petitioner's]

record as a Periodic report but it does not

end on a Periodic date per [BUPERSINST 1610.10].

 

...the fitness report should have been
considered an adverse report. In view of the
comments in block 41 "Comments on Performance",
we recommend the fitness report for the period
ending 30 September 2004 be removed and the
fitness report ending 31 October 2004 be the
fitness report of record.

... [Petitioner] has a missing fitness
report period from 1 September 2003 through
11 January 2004. [Petitioner] may submit

a Statement in Lieu of Missing Report, per
[BUPERSINST 1610.10]. :

 

k. Attached to enclosure (1) is an advisory opinion from the
NPC Officer Performance and Separations Section (PERS-834B),
regarding Petitioner's resignation from the Navy Reserve, which
states, in part, as follows:

...({Petitioner's] Commanding Officer, 4th
Medical Battalion submitted [a recommendation
for show cause for retention and administrative
separation]. The show cause authority reviewed
the request and found sufficient evidence to
require [Petitioner] to show cause for retention
in the navy [sic].

... [Petitioner] chose not to go before a
board of inquiry (BOI), but tendered a qualified
resignation and statement.

... [Petitioner's] current request does not
include new evidence which would support

4
changing the characterization or the
separation program designator code...

1. Regulations authorize administrative separation of
members by reason of unsatisfactory drill participation.
Regulations also authorize the show cause authority to require
members to show cause for retention in the Navy who are found
to have committed misconduct that if prosecuted under the
Uniform Code of Military Justice, could be punished by
confinement of six months or more. Regulations further allow
such members to tender a qualified resignation request in lieu

of BOI proceedings.

CONCLUSION:

Upon review and consideration of all the evidence of record,
the Board concludes that Petitioner's request warrants partial
relief. Specifically, the Board substantially concurs with the
comments contained in the advisory opinion provided by
PERS-311. In this regard, the fitness report for the period
ending 30 September 2004, should be removed and the fitness
report ending 31 October 2004, should be the fitness report of
record. Petitioner may submit a Statement in Lieu of Missing
Report for the period from 1 September 2003 through

11 January 2004. Furthermore, the Board substantially concurs
with the comments contained in the advisory opinion provided by
PERS-834B, regarding his resignation that resulted in a general
discharge by reason of misconduct. Finally, the Board finds

no evidence of inadequate counsel. Therefore, the Board
concludes that his fitness report for the period ending

30 September 2004, be removed from his naval record and that no

further relief be granted.

RECOMMENDATION:

 

a. That Petitioner's naval record be corrected by removing
therefrom the following fitness report and related material:

Period of Report
From To
6 Jun 04 30 Sep 04

Date of Report

Reporting |
18 Mar 05 hi

Senior
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 the
Memorandum state that the report has been removed by the 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 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.

e. That no further relief be granted.

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 Regulation, 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.

A ED, rola

vo W. DEAN EIFFER
Executive Director