DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
WJH
Docket: 2682-10
28 Feb 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD Qa,
Ree : (a) Title 10 U.8.C. TS52
Encl: ) DD Form 149 w/attachments
) NPC ltr 1430 Ser 811/296 of 24 May 2010
) NPC ltr 1430 Ser 811/607 of 18 Nov 2010
) Materials submitted by DONCAF
) Materials submitted by PSAB
)
Correspondence with Command
1. Pursuant to the provisions of reference (a) Petitioner
filed enclosure (1) with this Board requesting, in effect,
that the applicable naval record be corrected to show that
he advanced from pay grade E-3 to E-4 as a result of the
Cycle 203 (March 2009) exam cycle.
2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner’s allegations of error and
injustice on 14 February 2011. After careful and
conscientious consideration of the entire record, a
majority of the Board found that the evidence submitted was
sufficient to establish the existence of probable material
injustice and determined that the corrective action
indicated below should be taken on the available evidence
of record. One member, voting in the minority, recommended
that no corrective action be taken for reasons discussed
below. Documentary material considered by the Board
consisted of the enclosures, naval records, and applicable
statutes, regulations and policies. The Board also
considered advisory opinions provided by the Navy Personnel
Command, attached as enclosures (2) and (3) that
recommended no relief be granted.
Docket: 2682-10
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. In May 2008, Petitioner was accused of an off-base
sexual assault of a female Sailor. He was interviewed by a
civilian county police offic (> i
Shdeoe starts GH, observed the interview.
interview was tape recorded. QM later ereeeed
that Petitioner QP made a “verbal admission to
sexual assault” during the interview.
ips: fmm So
c. In 29 Oct 2008, the civilian charges were “nolle
prossed”. The Navy took no action against Petitioner.
d. In March 2009, Petitioner participated in an
advancement cycle. He achieved the requisite Final
Multiple Score (FMS) for advancement and was scheduled to
advance to E-4 in Sep 2009.
e, In June 2009, (7 months after the charges were
“nolle processed”), the Central Adjudication Facility
(DONCAF) issued a “Letter of Intent to Deny/Revoke Security
Clearance,” apparently based on QB claim (as
passed on to DONCAF from NCIS) that Petitioner QB made
an “admission to sexual assault” during the interview.
Enclosure (3).
f. In July 2009, Petitioner advised DONCAF that the
charges had been “nolle prossed.” But that apparently did
not alleviate DONCAF’s concerns. On 17 Aug 2009, DONCAF
revoked Petitioner clearance. His advancement was
invalidated. Enclosure (4).
g. Petitioner appealed the revocation to the
Personnel Security Appeals Board (PSAB). In Feb 2010, the
PSAB found in favor of Petitioner and directed DONCAF to
restore Petitioner's clearance. Enclosure (5).
Docket: 2682-10
h. In March 2010, Petitioner applied to this Board
seeking to validate the results of the March 2009
advancement cycle retroactively.
i. By enclosures (2) and (3), PERS 811 recommends “no
relief” be granted. PERS 811 reasons that Petitioner lost
his security clearance while waiting to advance and it was
not restored before the limiting date.
MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of
record, the majority of the Board, consisting of Messrs.
Pfeiffer and Zsalman concludes that Petitioner's request
warrants favorable action. The majority understood and
carefully considered the comments made in enclosures (2)
and (3). However, it found that the following factors
militated in favor of relief. The civilian charges were
“nolle processed,” no punitive or administrative action was
taken by the US Navy, (maintains that
Petitioner never made an admission against his own
interests, DONCAF revoked the clearance well after the
charges had been “nolle prossed,” and Petitioner’s command
supports him. Also, because the requested advancement is
from E-3 to E-4, granting the request is not overly-
burdensome to the agency. For these reasons, the majority
finds that, Petitioner's request should be granted
favorable action.
RECOMMENDATION:
That Petitioner’s naval record be corrected, where
appropriate, to show that:
a. Petitioner was advanced to pay grade E4 on 16
September 2009 as a result of the Cycle 203 (March 2009)
examination cycle with a TIR date of 1 July 2009.
MINORITY CONCLUSION:
The minority, Mr. George, finds insufficient evidence of an
error or injustice that would warrant relief. In the
minority’s view, in light of the importance of scrupulously
safeguarding national security information, DONCAF did not
act unreasonably when they revoked Petitioner’s clearance
based on the information available to them. Petitioner is,
Docket: 2682-10
at least in part, responsible for the circumstances in
which he found himself. Petitioner lost his security
clearance while waiting to advance and it was not restored
before the limiting date.
MINORITY RECOMMENDATION :
That the Petitioner’s request be denied.
@ 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 J. HESS, II
Recorder Acting Recorder
Bx The foregoing action of the Board is submitted for
your review and action.
LO Nous
W. DEAN PFHIF
Executive Dstetho
The MAJORITY recommendation is reviewed and approved:
ROBERT L. ame | 3 6/ il
Assistant General Counsel —
(Manpower and Reserve Affairs)
4000 Navy: Pentagon. Fir +0548
Washington, DC 20350-1000
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