DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

WJH
Docket: 10205-09
15 Feb 2011

From: Chairman, Board for Correction of Naval Records
T'o } Secretary of the Navy

Subj:

Ref: fa} Title 10 U.8.¢. Lose2

Encl: (1) NPC ltr 1070 PERS 312A of 13 Aug 2010

 

 

(2) Naval Supply Systems Command ltr 4050 Ser 53E/072
of 14 Jun 2010

(3) NPC ltr 1430 Ser 811/441 of 16 Aug 2010

(4) CNO ltr 5420 Ser N133D/000534 of 9 Nov 2010

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 following corrections
be made to the applicable naval record: (a) that block 17 on the
DD 214 be changed from “yes” to “no”, (b) that Petitioner be
authorized a shipment of household goods from San Diego CA to
Ajo AZ, (c) that the method of calculating Petitioner’s gross
monthly retired pay be modified, (d) that Petitioner be
reimbursed for excess transportation costs of $1237.00, (e),
that Petitioner receive retroactive advancement to E-8, (£)
retroactive advancement to E9, and (g) payment of submarine pay
and career sea pay for the period after transfer from the USS
Emory Land.

 

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George reviewed Petitioner's allegations of error and injustice
on 31 January 2011 and, pursuant to its regulations, determined
that only 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.
Also, the Board members considered the request for a personal
appearance, however they found that the issues in the case were
adequately documented and that a personal appearance with or
without counsel would not materially add to the Board's
Docket: 10205-09

understanding of the issues involved. Thus, the request fora
personal appearance has been denied.

3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice,
finds as follows:

a. The portion of the application extending to block 17 on
the DD 214 has been resolved administratively without the need
for action by this Board as evidenced by enclosure (1).

b. The portion of the application extending to shipment of
household goods from San Diego CA to Ajo AZ has been resolved
administratively without the need for action by this Board as
evidenced by enclosure (2).

c. The portion of the application extending to the method
of calculating gross monthly retired pay is being resolved
administratively by the Defense Finance and Accounting Service
(DFAS) without the need for action by this Board. DFAS is in
the process of changing the method of calculation to take into
account the pay rates applicable between 2002 and 2008.

d. Regarding the portion of the application extending to
reimbursement for excess transportation costs of $1237.00, by
enclosure (2), the office having cognizance over household good
shipments has commented to the effect that the request has merit
and warrants favorable action.

e. Regarding the portions of the application extending to
retroactive advancement to E-8, retroactive advancement to E9,
and payment of submarine pay and career sea pay, by enclosures
(3) and (4), the offices within the Navy having cognizance over

those matters have recommended no relief.

 

CONCLUSION

Upon review and consideration of all the evidence of record, the
Board finds as follows:

The requests described in paragraphs 3a through 3c can be
resolved without the need for action by this Board.
Accordingly, no further action should be taken at this time.

The request described in paragraph 3d above has merit and
warrants favorable action in light of the comments reflected in
enclosure (2). Review of the matter reveals the existence of an
injustice warranting the corrective action identified below.

2
Docket: 10205-09

The requests described in paragraphs 3e do not have merit and,
in the Board’s view, no corrective action is warranted. In
drawing this conclusion, the Board gave thorough consideration
to Petitioner’s claims. However, after careful and
conscientious consideration of the entire record, the Board
found that the evidence submitted was insufficient to establish
the existence of probable material error or injustice regarding
promotions and special pays. In this regard, the Board
substantially concurred with the comments contained in
enclosures (3) and (4). The Board well understood that the
findings of guilty associated with Charge 2 were set aside and
that the sentence for the finding of guilty on Charge 1 was “no
punishment.” However, the Board found that Petitioner’s
conviction on Charge 1, as approved by the convening authority,
was itself a very serious breach of expected standards. + The
behavior for which Petitioner was convicted alone may very
likely have resulted in his transfer from the USS Emory Land and
impacted negatively on his special pays and subsequent promotion
opportunity. The Board could not agree with Petitioner’s claim
that, but for the “erroneous” convictions, it is probable that
he would have remained onboard the ship, earned the special pays
and received later promotions (at the earliest eligible
opportunity). In fact, the Board found the contrary to be more
probable, namely that the misconduct for which he was convicted
in Charge 1 was sufficiently serious that it alone would likely
have resulted in his transfer from the USS Emory Land and
impacted negatively on his special pays and subsequent promotion
opportunities. Accordingly, the Board concluded that this
portion of the request should be denied.

 

RECOMMENDATION:

 

 

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

a. Petitioner is entitled to reimbursement of $1237.00 in
excess transportation costs for shipment of household goods from
Norfolk VA to Ajo AZ. The PLEAD on Petitioner’s original
discharge orders will read “Ajo AZ” vice any other place. The
following funding citation may be used: AA 1711804.12TL 420 00013
H 068892 2D 1BCNRC 000131BCNRCX NO001311MPBCNRC.

 

1 Charge 1 alleged a violation of a general regulation by engaging in the
following behaviors: wrongfully and repeatedly making comments of a sexual
nature towards, putting (his) arm around, and attempting to grab the buttocks
of a female sailor who was junior to Petitioner by three pay grades.

3
Docket: 10205-09

b. That so much of Petitioner's request for corrective
action as exceeds the foregoing be denied for the reasons
identified above.

c. That a copy of this Report of Proceedings be filed in
Petitioner’s naval record.

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.

[dbbuarg LP

 

 

ROBERT D. ZSALMAN WILLIAM J. HESS, III
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.

15 Feb 2011