DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 -
HD: hd
Docket No. 04493-09
9 October 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub): i co
, REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Enel: DD Form 149 dtd 20 Apr 09 w/attachments.
PERS-00J ltr dtd 10 Aug 09 w/enclosure
PERS-834 ltr dtd 21 Aug 09
PERS-32 memo dtd 2 Sep 09
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“4: 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 all reference to his nonjudicial
punishment (NUP) awarded on 14 November 2002 and subsequently
set aside, to include the fitness report for 7 September to
23 December 2002, a copy of which is at Tab A.
2. The Board, consisting of Messrs. Dunn, Grover and Sproul,
reviewed Petitioner's allegations of error and injustice on .
8 October 2009, 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, The NOP in question, for driving under the influence of
alcohol, was set aside on 23 August 2005 because the charges
were dismissed in the civil court after the NUP had been
awarded.
c. In enclosure (2), PERS-00J, the Navy Personnel Command
(NPC) legal office, commented to the effect that the action
setting aside the NUP at issue was valid.
d. In enclosure (3), PERS-834, the NPC office with
cognizance over officer performance, commented to the effect
that "the report of NUP" should be removed from Petitioner's
record in light of the set aside action. PERS-834 further
recommended filing in Petitioner's record a Memorandum for the
Record documenting the civil action in his case. The Board did
not consider filing such a memorandum, as Petitioner did not
request it.
e. In enclosure (4), PERS-32, the NPC office with |
cognizance over performance evaluations, commented to the effect
the contested fitness report should stand, as it has not been
established Petitioner was innocent of the misconduct mentioned
in the report. ©
f. Block 41 ("Comments on Performance") of the contested
fitness report includes the following: "Punitive letter of
admonition for driving under the influence of alcohol awarded at
Captain's Mast on 14 November 2002.” and "During Mast
proceedings, [Petitioner] was remorseful for his actions and
stated that it was a one time isolated incident."
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosures (2) through
(4), the Board finds the existence of an error and injustice |
warranting the following limited corrective action:
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
all reference to the NUP awarded on 14 November 2002, to include
the following in block 41 of the fitness report for 7 September
to 23 December 2002, signed by @ °USN and
dated 23 December 2002:
(1) “Punitive letter of admonition for"
(2) "awarded at Captain's Mast on 14Nov02." and
(3) "During Mast proceedings,"
b. 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.
c. 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.
d. That the remainder of Petitioner's request be denied.
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 JONATHAN &.. RUSKIN
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.
WwW. DEAN PFEIFFER
Executive Director
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