DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

WJH: BAN
Docket No. 06030-09
6 January 2010

From: Chairman, Board for Correction of Naval Records

To: Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD ICO FC
Ref: (a) Title 10 U.8.C. 1552

Encl: (1) DD Form 149 w/attachments

(2) NPC memo 1430 Ser 811/515 of 24 Jul 09

(3) Commanding Officer, Navy Operational Support Center
Norfolk, ltr 1000 Ser NO0/3386 of 7 Nov 09

{4) NAVADMIN 349/07

(5) BUPERSINST 1430.16F, Chapter 2, Eligibility Requirements
Excerpts

(6) Evaluations from March 2006 to March 2009

(7) Standard Form 600, Chronological Record of Medical Care ltr
of 30 May 08

(8) Officer in Charge Strike Fighter Wing Atlantic Detachment
AIMD Oceana ltr 1420 40 of 30 May 08

(9) NAVPERS 1079/613 of 10 Jun 08 and related documents
(10) (NETPDTC) e-mail of 18 Sep 2009
(11) BUPER ST 1430.16F, para 710 “Frocking of Enlisted

Personnel” and MILPERSMAN 1420-060
{12} (NPC) e-mail of 9 Nov 2009
{13} Servi ecord and evaluations

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 she was advanced to E-6/AT1 as a result of the March
2008, Navy-wide advancement cycle (Cycle 199).

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and George,
reviewed Petitioner’s allegations of error and injustice on

9 November 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 Navy Personnel Command and the Commanding Officer
Navy Operational Support Center (NOSC) Norfolk, Virginia attached as
enclosures 2 and 3 that recommended no relief be granted.

3. The Board, having reviewed all the facts of record pertaining to
Petitioner's allegations of error and injustice, finds as follows:
Docket No. 06030-09

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations

within the Department of the Navy.

b. Petitioner is an Aviation Electronics Technician Second
Class. She was advanced to her present rank in September 1998.

c. In July 2002, Petitioner arrived at the Aircraft Intermediate
Maintenance Depot (AIMD} Oceana VA* for duty under Permanent Change of
Station orders.

‘d. In May 2003, Petitioner received orders transferring her to
the Navy Operational Support Center (NOSC), Norfolk, Virginia. Because
Petitioner was’ living in base housing at Oceana, had a dependent child
enrolled in child care in Oceana and had professional rating skills
that could be exercised at the AIMD Oceana, she was authorized by the
NOSC Norfolk to remain in Oceana and perform her military duties ar
the AIMD Oceana in spite of the transfer orders. No “temporary” or
“permanent” orders were issued for this arrangement.

e. Physical Fitness Assessment (PFA) records show the following:

Spring 2004, Fall 2004 and the Spring 2005 PFA’s: Petitioner was
medically waived from both the Body Composition Assessment (BCA) and
the Physical Readiness Test (PRT).

Fall 2005 PFA: Petitioner successfully met the overall PFA standards.
She participated in all parts of the PFA except for the “Cardio”
category of the PRT for which she was medically waived.

Spring 2006 PFA: Petitioner failed to meet overall PFA standards
because she failed to meet the BCA standards. She was medically
waived from participation in all parts of the PRT (exercise portion).

Fall 2006 PFA: Petitioner successfully met the overall PFA standards.
She successfully met the BCA standards and was medically waived from
participation in all parts of the PRT (exercise portion). See
enclosure 1.

£. From March 2007 to September 2007, Petitioner was placed on
limited duty due to bursitis, knee pain, hip pain and chronic fatigue.
Her limited duty was extended from September 2007 to March 2008.
Shortly thereafter, a Medical Board was initiated that ultimately
determined in June 2008 that she was “Fit to Continue Active Duty”.
However, a subsequent medical assessment screening performed by the
Navy Medical Center Portsmouth found the following limitations: “No

1 Due to command reorganizations. and redesignations, the Aircraft Intermediate
Maintenance Depot (AIMD) Oceana VA is also referred to in Petitioner's
application as the Fleet Readiness Center (FRC) Oceana, Virginia.
Docket No. 06030-09

shipboard duty, No overseas billets, No mandatory PT, No running, no
semi-annual PRT. May exercise at own pace.” See enclosure 1.

g. Physical Fitness Assessment (PFA) records also show the
following:

Spring 2007 and Fall 2007 PFAs: Petitioner successfully met the
overall PFA standards. Petitioner met the BCA standards and was
medically waived from participation in the PRT (exercise portion).

h. NAVADMIN 349-07 announced the March 2008 (Cycle 199} Navy
wide Petty Officer advancement examinations for E-4 through E-6. In
order to be eligible to participate in the cycie, candidates were
required to meet all eligibility requirements by 1 February 2008. See
enclosure 4.

i. On 1 February 2008, Petitioner met all eligibility
requirements to participate in the advancement cycle. She had the
minimum required time in grade.* Her most recent evaluation (ending 15
March 2007 “recommended” her for retention and included a promotion
recommendation of “must promote.”* Also, although she was on limited
duty at the time, per BUPERSINST 1430.16F, “Personnel in a LIMDU
status may participate for advancement in rate if otherwise qualified”
provided their condition is not a result of their own misconduct. See
enclosures 5 and 6.

j. Petitioner participated in the E-6/AT1 Navy-wide advancement
exam which was administered on 6 March 2008.

k. On 17 March 2008, her reporting senior signed her next annual
evaluation which reported on her performance from 16 March 2007 to
15 March 2008. He “recommended” Petitioner for retention and gave a
promotion recommendation of “early promote.” See enclosure 6.

1. The results of the E-6/AT1 advancement examination were
published on 19 March 2008. Petitioner was selected for advancement.

m. Petitioner’s command conducted their Spring 2008 PFA on 28
and 29 May 2008. On 28 May 2008, Petitioner failed to meet the
overall PFA standards because she failed to meet the BCA standards.
She was medically waived from participation in the PRT (exercise)
portion of the PFA.* See enclosures 1 and 3,

2 She had been an E-5/AT2 since September 1998.

> Her next evaluation which reported on her performance from 16 March 2007 to
15 March 2008 also “recommended” Petitioner for retention and included an
even “higher” promotion recommendation of “early promote.”

* Note, for reasons that will become apparent, Petitioner argues that she
should be considered medically waived from the BCA portion of this PFA as
well.
Docket No. 06030-09

n. On 30 May 2008, two days after failing the BCA portion of the
PFA, Petitioner received another medical waiver. This waiver was based
on a diagnosis of hypothyroidism. It was effective for the period 30
May 2008 to 1 October 2008 and included a waiver of the BCA portion of
the PFA. See enclosure 7. Petitioner argues that this waiver should
be considered retroactive (by two days) to excuse the recent 28 May
2008 BCA failure.

o. On 2 June 2008, the Officer in Charge, Strike Fighter Wing
Atlantic DET AIMD Oceana, a 2 “frocked” >
Petitioner to E-6/AT1 (apparé y excusing the tardiness of the 30 May
2008 BCA waiver and giving it retroactive effect). See enclosure 8.
However, on 12 June 2008, Petitioner's “parent” command (the Navy
Operational Support Center, Norfolk, Virginia) countermanded the OIC’s
determinations and declined to give retroactive effect to the 30 May
2008 BCA waiver.®

   

p. On 10 June 2008, Petitioner was advised that her scheduled
advancement would be withheld. She was issued a NAVPERS 1070/6123
Administrative Remarks (Page 13) entry memorializing that
determination. Additionally, the command sent a message to the Naval
Education and Training Professional Development and Technology Center
(NETPDTC) (Code N321) with an information copy to NAVPERSCOM (PERS
@11/812) withholding the advancement and advising that a required Page
13 entry has been-made. See enclosure 9.

q. On 14 November 2008, as directed, Petitioner requested
transfer to the Fleet Reserve to be effective at her “High Year ©
Tenure” date of April/May 2010. Petitioner's request was granted and
she is scheduled to be transferred to the Fleet Reserve effective 30
April 2010. See enclosures 1 and 3.’

r. Petitioner's advancement was not reinstated before the
limiting date of 31 December 2008. See enclosure 3.

5 Procking is an administrative authorization to assume the title and wear the
uniform of the higher pay grade before the advancement is actually effective.
Petitioner’s advancement was not scheduled to be effective until 16 October
2609.

® Governing regulations provide that prior to the PFA, PRT assessment sheets
are provided to the entire command. Sailors who disclose medical conditions
that may interfere with their ability to pass the PFA are required to be
evaluated by a medical professional. There is no evidence that Petitioner’s
hypothyroidism was evaluated by a medical professional for PFA purposes
before the BCA. PRT/BCA waivers should not be accepted after the date of the
PFA/PRT/BCA.

7? Petitioner has given this Board assurances that, if her request for a
retroactive advancement is approved, she is not contemplating any future
request or application to extend her active service beyond her Fleet Reserve
transfer date of 30 April 2010. This is an important factor that influenced

the Board towards leniency.
Docket No. 06030-09

s. dust before the limiting date, on 28 and 29 December 2008,
Petitioner met with her Command Master Chief and her commanding
officer. She was advised that “because she was clearly not within
standards and her Fleet Reserve (request) was approved, she was no
longer eligible for advancement.” See enclosure 3.

t. In March 2009, Petitioner participated in the March 2009
advancement cycle. She also underwent surgery and was on convalescent
leave from 17 March 2009 to 30 April 2009. Upon return, she learned
that her March 2009 exam had been invalidated due to “PRT failure and
pending retirement date.” See enclosure 1.

u. On 1 April 2009, her reporting senior signed her evaluation
which reported on her performance from 16 March 2008 to 15 March 2009.
The reporting senior “recommended” Petitioner for retention and gave a
promotion recommendation of “must promote.” See enclosure 6.

vy. On 5 June 2009, Petitioner filed enclosure 1 with this Board
requesting that the applicable naval record be corrected to show
advancement to E-6/AT1 from the March 2008, Navy-wide advancement
exam, Cycle 199. Petitioner argues, essentially, that based on the
totality of the circumstances, the BCA waiver of 30 May 2008 should be
given retroactive effect. Her local command was well aware that she
had been on extended limited duty due to health problems and that she
had received multiple PFA waivers in the time leading up to the Spring
2008 PFA. And although her “limited duty” period had expired, the
“medical board” assessment process had already begun by the time of
the BCA measurement on 28 May 2009. After the BCA measurement, she
made a medical appointment as soon as possible and was found to be
suffering from hypothyroidism. It is reasonable to conclude that her
medical condition predated her diagnosis by at least two days.
Moreover, her OIC determined that her diagnosis and BCA waiver, though
two days tardy, was nevertheless sufficient to excuse her BCA failure
as evidenced by his decision to “frock” her. Additionally, Petitioner
claims that her “frocking” was not removed in accordance with the
governing instructions and that she was not provided with assistance
and opportunity to comply with the BCA standards before the limiting
date. She also claims that the reasons cited for invalidating the
March 2009 exam (“PRT failure and pending retirement date”) were

erronecus.

w. By enclosure 3, Petitioner's command has commented that no
relief is warranted for the following reasons: Petitioner was not
within BCA standards and did not have a valid BCA waiver before the
Spring 2008 PFA cycle. The “waiver” issued two days after the BCA was
tardy and is ineffective to excuse the BCA failure. Her advancement
was properly withheld and she was properly notified. She should not
have been “frocked” because her OIC lacked the authority to “frock”
her. She was advised that she had until 31 December 2008 (the
limiting date) to get within standards. She had adequate opportunity
Docket No. 06030-09

and assistance to achieve that goal. However, she failed to meet the.
BCA standards before the limiting date. Also, her “local” command
should not have allowed her to take the March 2009 exam because she

still had not passed a PFA.

CONCLUSION:

Upon review and consideration of all the evidence of the record, the
Board concludes that Petitioner's request warrants favorable action.
The Board carefully considered the comments of the command to the
effect that the 30 May 2008 BCA “waiver” was tardy and thus
ineffective to excuse a BCA failure. However, the Board found that
based on the totality of the circumstances, the interests of equity
and justice demand that, as an exception to policy, the BCA waiver of
30 May 2008 should be given retroactive effect in this one particular
instance. Petitioner's evaluations from March 2004 - March 2009 show
that, despite her health and PFA issues, her performance was rated by
her reporting senior as excellent and she was consistently recommended
for retention. No evaluations during that period indicate any
shortcomings in her performance that would disqualify her from
advancement. In fact, the evaluations indicate just the opposite,
namely, that her reporting seniors believed that she was a “must” or
“early” promote. Additionally, although the BCA waiver was “tardy”
(by two days), the Board also concluded that her medical condition
(hyperthyroidism) very likely existed well before the BCA measurement
on 28 May 2009. The Board recognized that Petitioner’s “limited
duty” period had expired in March 2008, but found that was mitigated
by the evidence that the “medical board” assessment had already begun
before the BCA measurement. Moreover, Petitioner’s OIC, who had
direct daily observation, excused her BCA failure as evidenced by his
decision to “frock” her on 2 June 2008.

The Board noted that the procedures used by Petitioner’s “parent”
command to withhold the advancement were carried out in strict
accordance with the governing regulations. Her command issued the
required Page 13 entry and sent the required message to the Naval
Education and Training Professional Development and Technology Center
(NETPDTC) (Code N321) with an information copy to NAVPERSCOM (PERS
811/812). However, it appears the message was never received by
NETPDTC. This resulted in some confusion because NETPDTC is still of
the view that Petitioner should have been advanced as a result of the
March 2008 cycle. See enclosure 10. And although the communication
failure cannot be attributed to the command, the Board found that the
confusion caused by this happenstance militated in favor of the
Petitioner.

The Board was not persuaded by the Petitioner’s argument that the
procedures used to remove her “frocking” entitled her to relief.
“Frocking” is not ‘advancement. Thus, in the Board’s view, even if
the “frocking” removal was erroneous, such error would have no impact
Docket No. 06030-09

on the withholding of the “advancement.” Likewise, Board was not
persuaded by the Petitioner’s argument that she should he entitled to
relief because she was not provided with assistance and opportunity to
comply with BCA standards before the limiting date. In the Board's
view, Petitioner herself bears the lion’s share of the responsibility
for getting within standards and demonstrating that she is within

Standards (or waived).

Likewise, the Board was not persuaded by the command’s argument that
the OIC had no authority to “frock” the applicant. The governing
instructions contemplate that OIC’s with “By direction” authority may
“frock” candidates and that the frocking is memorialized by effecting
a Page 13 entry as was done in Petitioner's case. The command has not
proffered any evidence, such as a limitation placed on Commander

“By direction” authority to substantiate their statement
that the “FRC lacked the authority to frock g See enclosure

ii.

  
   

The Board noted that there seems to be much debate and perhaps
confusion over whether Petitioner’s approved request to transfer to
the Fleet Reserve disqualified her from participation in the March
2009 advancement cycle. Under the governing regulations, this
Limitation applies only to B6, E7 and E8 members. See paragraph 209
of the BUPERSINST 1430.16F in enclosure 5. Because Petitioner was an
E-5, the limitation alone did not disqualify her. Thus, the fact that
Petitioner had an approved request to transfer to the Fleet Reserve
should not have served as a basis to invalidate her March 2009 exam.
And the PSD Little Creek’s action to invalidate Petitioner’s March
2009 exam, in part, on that basis was error. See enclosure 12. And
although the error was unrelated to the March 2008 advancement cycle,
it is emblematic of the communication and documentation deficiencies
that plague this case and militate in favor of granting relief.

For the reasons stated above, the Board concludes that the record
should be corrected to show that Petitioner was advanced to E-6/AT1
from the March 2008, Navy-wide advancement exam, with an effective
date of 16 October 2008 and a Time in Rate (TIR) date of 1 July 2008.

RECOMMENDATION :

That Petitioner’s naval record be corrected, where appropriate, to
show that:

a. Petitioner was advanced to E-6/AT1 from the March 2008, Navy-
wide advancement exam, with an effective date of 16 October 2008 and a

TIR date of 1 July 2008.
Docket No. 06030-09

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.

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

and action.
\p 7

W. DEAN PFEIF
Executive Direct

ROBERT D. ZSALMAN WILLIAM J. HESS,
Recorder Acting Recorder

Reviewed and approved:

Ad [nb fale

esl istant General Counsel
ve wer and Reserve Affairs)