DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100
TRG

Docket No: 7414-07
14 November 2008

From: Chairman, Board for Correction of Naval Records

   

To: Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD O# i
Ref: (a) Title 10 U.S.C. 1552
Encl: (1) Case Summary

(2) Subject's naval record

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

officer in the Navy Reserve, filed an application with this Board

- requesting that a nonjudicial punishment (NJP) be removed from

his record and, in effect, that all subsequent adverse actions
resulting from the NJP such as failures of selection and
involuntary release from active duty be rectified.

2. The Board, consisting of Mr. iit, and Mr. Aaa

reviewed Petitioner's allegations of error and injustice on 28
October 2008 and, pursuant to its regulations, determined that
the corrective action indicated below should he 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. Although it appears that Petitioner's application was
not filed in a timely manner, it is in the interest of justice to
waive the statute of limitations and consider the application on
its merits.

c. Petitioner was honorably discharged from the Marine
Corps on 6 February 1997 with six years of active duty. On 23
May 1997 he was commissioned in the Navy Reserve. He then served
in an excellent manner for over four years and was promoted to
lieutenant (LT; 0-3). On 15 August 2001 he received NJP for
violations of the Uniform Code of Military Justice, Article 80
(Attempted Fraternization)s and 133 (Conduct Unbecoming an
Officer and Gentleman). The punishment imposed was a letter of
reprimand. A subsequent board of inquiry unanimously voted to
retain him on active duty. On 31 January 2008 he was released
from active duty because he had twice failed of selection to
lieutenant commander (LCDR; 0-4). At that time he was paid
separation pay of $116,719.57. The DD Form 214 shows that his
total enlisted and commissioned active service was 16 years, 11
months and 25 days. A statement of service for reserve
retirement has been obtained and shows that as of 23 August 2008
he will be credited with 18 years of qualifying service for
reserve retirement purposes. Therefore, he is apparently ina
position to qualify for reserve retirement.

d. On 10 March 2006, the Navy captain who imposed NJP on
Petitioner wrote a letter to the Navy Personnel Command (NPC)
setting it aside. He stated that Petitioner had accepted
responsibility for his actions and had a great deal to offer the
naval aviation community. Subsequently, NPC stated that no
action could be taken on the set aside because only the officer
currently serving as the commanding officer of the command which
imposed the NJP or the commanding officer who currently has NJP
authority over the individual may set it aside.

e. On 3 May 2006 another Navy captain wrote essentially the
same letter to NPC setting aside the NUP. In its response NPC
states, in part, as follows:

...authority to set aside shall normally be exercised
only when the authority considering the case believes
that, under all the circumstances, the punishment has
resulted in a clear injustice. Normally this
authority must be exercised with a four month period
from the NUP.

...In this case, you have made no assertion that any
injustice was committed during the due process of the
NIP or the resulting punishment. In addition, this
set aside action is for an NUP completed almost five
years past. Neither of these deviations from the
President's guidance was explained [in your letter]...

f. Petitioner states in his application that the
accusations against him were false and ultimately withdrawn. He
also contends that actions are being taken to expunge the
erroneous information from the National Crime Information Center
database.

g. Attached to enclosure (1) is an advisory opinion from
the Deputy Assistant Judge Advocate General (DJAG), Criminal Law
Division which states that Petitioner received NJP and a letter
of reprimand for attempted fraternization and conduct unbecoming
an officer. The advisory opinion concludes, in effect, that NPC
was not in compliance with the law and the set aside request
should have been accepted by NPC. Therefore, it is recommended
that the NUJP be removed from Petitioner's record.

CONCLUSION:

Upon review and consideration of all the evidence of record and
the recommendation contained in the DJAG advisory opinion, the
Board concludes that Petitioner's request warrants favorable
action. Further, the Board is aware of the favorable action
taken by the Board in similar cases. Accordingly, the Board
concludes that the NIP should be removed from Petitioner's
record. With the removal of the NJP there is no basis for the
related adverse fitness report and it should also be removed from
Petitioner's record. Finally, all of Petitioner's failures of
selection to lieutenant commander should be removed from his
record. The Board notes that the NUP was properly in the record
from 15 August 2001 until the date of the first set aside letter
on 10 March 2006 and believes that the foregoing action provides
sufficient relief and further action such as directing a special
selection board is not warranted.

Since Petitioner's record will show that he has not failed of
selection, there is no basis for the release from active duty on
31 January 2008 and the record should be corrected to show that
he has been on active duty since that date.

RECOMMENDATION :

a. That Petitioner's naval record be corrected by removing the
NUP of 15 August 2001 from his record.

b. That Petitioner's naval record be further corrected by
removing all of his failures of selection to lieutenant Commander
that have occurred since 15 August 2001.

c. That Petitioner's naval record be further corrected to show
that he was not released from active duty on 31 January 2008 but
continued to serve on active duty as a reserve officer.

d. That Petitioners' naval record be corrected by removing

therefrom the following fitness report and related material:

Period of Report
From TO

1 Mar 01 31 Jan 02

Date of Report
3 February 2002

 

e. 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.
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.

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.

Dees

Executive D1