DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

SMS
Docket No: 9413-08
2 October 2008

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

Subj: REVIEW OF NAVAL RECORD a ee

Ref: (a) 10 Us8.€. 1552

Encl: (1) Case Summary
(2) Subject’s naval record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the United States Navy, applied to this
Board requesting to remove the nonjudicial punishment (NIP)
that he had on 26 March 2007, and the evaluation and counseling
record from 16 November 2006 to 25 March 2007.

2. The Board, consisting of vs. iii. ve and
sO

vr ia reviewed Petitioner's allegation error and
injustice on 1 October 2008, and pursuant to its regulations,
determined that the 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. On 21 October 2005, Petitioner reenlisted in the Navy at
age 33 after four prior periods of honorable service, during
which he was promoted to pay grade E-6, awarded two Navy and
Marine Corps Navy Achievement Medal's (NMCAM), a Navy
Commendation Medal (NCM), selected as Sailor of the Quarter,
consistently received exemplary performance evaluations, and

had no disciplinary actions.
c. During October 2006, Petitioner reported to a reserve
unit which subsequently deployed to Kuwait. On 26 March 2007,
he had NUP for failure to go to his appointed place of duty, in
the time of war willfully disobey the same, and disrespect to a
chief petty officer. Punishment included a reduction in rank,
45 days of restriction and extra duty, and forfeitures of pay,
which were suspended for a period of 45 days. On
14 May 2007, he received an adverse performance evaluation for
the period 16 November 2006 to 25 March 2007, and was then
transferred to another unit.

d. In his application, Petitioner states in essence that he
had NUP due to reprisal pursuant to title 10 of the United
States Code (U.S.C.), section 1034, which is substantiated by
an investigation conducted by the United States Fleet Forces
Command Inspector General (USFF IG), concurred with by the
Naval IG, and Department of Defense (DoD) IG. He further
states that he has lost the opportunity to compete for chief
petty officer selection twice as a result of this substantial
reprisal and now faces high year tenure.

e. Attached to enclosure (1) is a letter from Petitioner to
Congressman Sqiiggpie in which he states in essence that while
deployed to “from October 2006 to May 2007, he was
maliciously charged with offenses as reprisal for reporting
possible wrong doing by his Leading Chief Petty Officer (LCPO).
He further states that he reported to his superior that the
LCPO was fraternizing with a co-worker, and after it appeared
that no action was taken, he reported the inappropriate
relationship again. Four days later he was counseled by the
LCPO, the Command Master Chief, and was subsequently charged
with offenses by the same LCPO, Master Chief, and superior to
which he reported his concerns. He further states that he was
then taken to two disciplinary review boards, accused of all
sorts of misconduct, belittled, had his good name destroyed,
and subsequently had NUP where the LCPO, Command Master Chief,
and his superior all made untruthful statements about him and
how he conducted his military duties. He further states that
he was reduced in rank which prevented him from being
considered for promotion to pay grade E-7. He concludes that
this type of behavior does not describe his career and does not
reflect the type of sailor that he is.

£. Attached to enclosure (1) 1s a letter from the Department
of the Navy, Naval IG to Congressman ~—ggay regarding
Petitioner's allegations of reprisal for making protected
communications of alleged Fraternization to his superiors and
for contacting the Command Managed Equal Opportunity (CMEO)
officer, which states, in part, as follows:

_..The Commander, [USFF IG], conducted an
investigation of [Petitioner's] reprisal
allegations pursuant to the provisions

of the "Military Whistleblower Protection
Act," Title 10, [U.S.C., section] 1034...
[we] referred the matter to the [DoDIG]
for an oversight review required by the
statute. The DoDIG subsequently advised
that they concurred with the findings of
both this office and the USFF IG.

...The investigation concluded a member of
[Petitioner's] previous command reprised
against him by directing the reconvening

of a Disciplinary Review Board to review
its recommendation not to refer charges
against [Petitioner] to Captain's mast,
where he could be awarded [NUP]. As a
result of this substantiated reprisal,
[Petitioner] went to Captain's mast,

where he was awarded a reduction in .
pay-grade [sic] from E-6 to E-5. On the
matter of the mast, the investigation did
not substantiate that the Commanding Officer
_..who actually held mast violated [title]
10 [U.S.C., section] 1034. Rather, the
investigation found that the CO acted

in good faith based on the information
provided at that time. Notwithstanding
this conclusion, the investigation
correctly noted that mast would not have
occurred absent the prior violation of [title]
10 [U.S.C., section] 1034. As a result the
decision to reduce [Petitioner] in pay-
grade [sic] should be reviewed...

...The investigation also examined whether
[Petitioner's] adverse performance
evaluation dated May 11, 2007 constituted

a violation of [title] 10 [U.S.C., section]
1034. The investigation noted that issuance
of such performance evaluations is required
by Navy instruction whenever an enlisted
member is reduced in pay-grade at mast...
the investigation concluded that because
the adverse performance evaluation was a

direct consequence of a substantiated act

of reprisal, the question of the legitimacy

of this evaluation as part of [Petitioner's]
military record similarly should be reviewed...

_..The investigation further concluded that
the decision by the lower level office to
transfer [Petitioner] to another assignment
following mast and the issuance of the
unfavorable performance evaluation also
constituted a violation of [title] 10 U.S.C.
[section] 1034...

g. According to title 10 of the U.S.C., section 1034, no
person may take an unfavorable personnel action as a reprisal
against a member of the armed forces for making a complaint or
reports a violation of law or regulation to any person or
organization designated pursuant to regulations or other
established administrative procedures for such communication.

CONCLUSION:

Upon review and consideration of all evidence of record, the
Board concludes that Petitioner's request warrants relief.
Specifically, the Board finds that the NUP was a result of
reprisal from members within his command pursuant to the
provisions of the "Military Whistleblower Act," title 10 of the
U.S.C., section 1034. In this regard, the USFF IG's
investigation concluded that a member of his command reprised
against him by directing the reconvening of a Disciplinary
Review Board to review its recommendation not to refer charges
against him, which resulted in NOP on 26 March 2007. The Board
finds that the scenario of events that led to the NUP occurred
within about a three month period of time and believes that he
would not have had NUP if he had never reported the suspected
fraternization of his LCPO and co-worker. Furthermore, the
Board finds that he received an exemplary performance
evaluation after he transferred from the unit where the
incident occurred and further finds that the offenses for which
he had NIP were not indicative of his overall service record.
Specifically, at the time, he had completed more than 16 years
of active service with no disciplinary actions, continually
received exemplary performance evaluations, attained pay grade
E-6, was awarded two NMCAM's, and a NCM, and was selected as
Sailor of the Quarter. Therefore, the Board concludes that the
NUP and performance evaluation ending 25 March 2007, should be
removed.
RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing
the NJP dated 26 March 2007, and the punishment imposed.

b. That Petitioner's naval record be corrected by removing

therefrom the following performance evaluation and related
material:

Period of Report

Date of Report Reporting Senior From ' To

 

14May07 1Lé6Nov06 25Mar07

c. That there be inserted in Petitioner's naval record a
memorandum in place of the removed performance evaluation
containing appropriate identifying data concerning the report;
that the memorandum state that the report has been removed by
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.

d. 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.

e. 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 Buon). 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.