DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Docket No. 05064-0609
19 October 2009

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

 

Subj: REVIEW OF NAVAL, RECORD Ico

_

 
 

Ref: (a) Title 10 U.S.C. 1552
Encl: DD Form 149 w/attachments .
NAVPERS 1626/7 dtd 28 Apr 08 w/attachments
NAVPERS 1616/26 dtd 8 May 08

DFAS Form 702 dtd Jan 02

USS: BATAAN msg dtd R2811112 AUG 08
BUPERSINST 1430 dtd 2 Nov 07

USS BATAAN msg dtd R2520132 NOV 08

NPC memo 1430 Ser 811/452 of 9 Jul o9

NPC memo 1610 PERS-32 of 6 Aug 09

NAVPERS 1616/26 dtd 25 Feb 09
) Service Record

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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 to’ show that he advanced to E-5/EM2 from the
March 2008, Cycle 199, Navy-wide advancement exam.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner’s allegations of error and injustice
on 28 September 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. The
Board also considered advisory opinions furnished by the Bureau
of Navy Personnel attached as enclosures (8) and (9) that
recommended no relief be granted.

3. The Board, having reviewed all the facts of record |
pertaining to Petitioner’s allegations of exror and injustice,
finds as follows:
Docket No. 05064-09

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 March 2008, Petitioner participated in the Navy-wide
advancement exam Cycle 199, for E-5. Petitioner was selected
for advancement with an effective date of 16 August 2008,
enclosure (1). However, on 1 May 2008, before his actual date
of advancement, Petitioner received a nonjudicial punishment
(NJP) for Driving Under the Influence (DUI) of alcohol and
failure to obey a lawful order, enclosure (2).

c. As a result of Petitioner’s NUP, on 8 May 2008, he
received a special evaluation that withdrew his recommendation .
for advancement. Petitioner elected not to submit a statement
regarding the removal of his recommendation, enclosure (3).
Although, Petitioner was aware that his advancement
recommendation was being withdrawn, the USS BATAAN, LHD-5 (his
command), failed to notify the Naval Personnel Command (NPC) or
the Naval Education and Training Command (NETPDTC) [as required
by the Bureau of Naval Personnel Instruction (BUPERSINST)
1430.16F)] before his effective date of advancement, (the date
he would start getting paid). Petitioner did not participate in
the “frocking” ceremony because he was aware that his
recommendation was withdrawn by his commanding officer.

However, because the command failed to submit a message
withdrawing his recommendation to NPC and NETPDTC, prior to his
advancement date, the Petitioner started to receive E-5 pay
effective 16 August 2008, enclosure (4).

d. When Petitioner began getting paid as an E-5, on 28
August 2008, the command sent a message to NPC and NETPDTC
withdrawing EM2’s advancement recommendation,” enclosure (5).
Subsequently, the E-5 pay was stopped and he was paid again as
an E-4.

e. BUPERSINST 1430.16F states, “Recommendation/advancement
authority cannot be withheld or withdrawn on or after the
effective date of advancement. Failure to comply with the
required actions prior to the advancement date will result in
the member retaining scheduled advancement”, enclosure (6).

* To properly withhold his advancement, this message should have been sent
prior to 16 August 2008, the effective date of advancement.
Docket No. 05064-09

£. On 25 November 2008, fenclosure (7)), the USS BATAAN’s
commanding officer sent a message to NPC, via.NETPDTC, *..to
allow service-member [Petitioner] be advance to EM2 effective
16AUGO8", due to the administrative error by the command by not
withdrawing Petitioner’s recommendation prior to his advancement
date of 16 August 2008, enclosure (7).

g. Petitioner has now asked that he be retroactively
advanced to 16 August 2008. In advisory opinions, enclosures
(8) and (9), BUPERS recommended that no relief be granted. They
reason that although the command erred in failing to withdrawn
his advancement recommendation before the advancement date of
16 August 2008, his evaluation dated 15 December 2007 to 1 May
2008, effectively removed his advancement recommendation. The
advancement recommendation was not restored until 25 February
2009, after the limiting date of 31 December 2008, enclosure
(10). Note: BUPERSINST 1430.16F, the “CO/OIC recommendations
is the most important advancement eligibility requirement” and
‘The most recent evaluation is the sole source of recommendation
for advancement”. Petitioner’s most recent evaluation did not
recommend Petitioner for advancement for the March 2008 exam
eycle, enclosure (6).

CONCLUSION:

Upon review and consideration of all the evidence of the record,
the Board concludes that Petitioner’s request warrants favorable
action. The Board finds that although Petitioner was notified,
through a special evaluation, that his recommendation was being
withdrawn due to his NJP, the command failed to notify NPC and |
NETPDTC before his effective date of advancement as required by .
the governing instruction. In addition, the Board believed that
Petitioner had the support of his command when the commanding
officer sent a message on 25 November 2008, to NPC via NETPDTC
asking to advance Petitioner to E-5/EM2, effective 16 August
2008. Accordingly, the Board concludes that the record should
be corrected to show that Petitioner was advanced to E-5/EM2
from the March 2008, Navy-wide advancement exam, with an
effective date of 16 August 2008.

RECOMMENDATION :

That Petitioner’s naval record be corrected, where appropriate,
to show that:
Docket No. 05064-09

a. Petitioner was advanced to E-5/EM2 from the March 2008,
Navy-wide advancement exam, with an effective date of 16 August
2008, and with a Time In Rate date of 1 July 2008.

4, Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6{c)) it is certified that 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 WILLIAM 3. HESS,“ III

Recorder Acting Recorder

5;. The foregoing action of the Board is submitted for your

review and. action.
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ON gah

Executive Di

Reviewed and approved:

WHleoomeie)

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