DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Docket No. 07085-10
11 October 2011

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

Subj: REVIEW OF NAVAL 2CCRD ST,

Ref: (a) 10 Uc6.C. 1552

Encl: (1) DD Form 149 w/attachments
(2) Naval Personnel Command (NPC) memo 1430 Ser 811/408

of 26 Jul 10

(3) Office of the Chief of Naval Operations memo 1430 Ser
N13/196 of 22 Apr 11

(4) Office of the Assistant Secretary, Manpower and
Reserve Affairs, Limited Delegation of Authority memo
27 Sept 11

(5) NETPDTC Form 1430/3 for advancement cycle 204

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 validate his E-6/AE1
Navy-wide advancement examinations and show that he met the
criteria to be advanced to E-6/AE1 from the September 2009
eyele.

 

>. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George reviewed Petitioner's allegations of error and injustice
on 3 October 2011 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 enclosures (2) and (3) which are
recommendations from the Navy Personnel Command (NPC) Code 811
(Career Progression Department) and the Office of the Chief of
Naval Operations (CNO) Code N13, that 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. 07085-10

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Under BUPERINST 1430.16F, (Advancement Manual for
Enlisted Personnel of the U.S. Navy and U.S. Navy Reserve), all
personnel designated in certain ratings, including Petitioner’s
rating, “must maintain, as a minimum, continuous security
clearance eligibility.” This provision has been interpreted by
NPC to mean that, in order to be eligible to participate in an
advancement cycle, take an advancement exam or advance to the
next highest grade, a Sailor in one of the designated ratings
must hold a final clearance which has been adjudicated and
granted by the Department of the Navy Central Adjudication
Facility (DONCAF).

c. Petitioner entered the Navy in 2003 as a E-3. Over the
next eight years, he advanced from E3 to E5 and participated in
multiple E6 advancement cycles. During this time, he did not
have a DONCAF adjudicated security clearance. In 2009, upon
realizing that he did not have the required clearance, NPC
invalidated the results of his E6 advancement cycles entirely.
Petitioner avers that he was unaware of any deficiency in his
clearance status. He cites the Navy’s actions between 2003 and
2009 as evidence that he reasonably believed he was qualified to
compete for advancement. The issue in this case is whether,
under the circumstances, his record should be changed to
validate the results of the E6 exam cycles.

d. Examination of Petitioner’s naval record reveals the
following: Petitioner enlisted in the Navy in May 2003. He
completed and submitted the standard security questionnaire
documents required of all enlistees. He attended and graduated
AE “A” school in December 2003. He then transferred and
received official order to VFA-11, where he took the E-4 and E-5
advancement examinations and was selected and advanced for both
pay grades. He also was allowed to participate in the September
2008 E-6/AE1 exam but only received “Passed but Not Advanced”
(PNA) points. He then transferred in late September 2008, and
received follow on orders to VFA-106 until July 2011. While
stationed with VFA-106, he participated in the March 2009 but
did not achieve the final multiple score needed to advance to
E6. However, because of his passing exam scores, for both
September 2008 and March 2009, he was entitled to and received
PNA points. Those points may be used in subsequent exam cycles
to raise a participant’s final multiple score.
Docket No. 07085-10

e. In September 2009, Petitioner again was allowed and
participated in the E-6/AE1 advancement examination. He
successfully passed and was selected for advancement with an
effective date of 16 June 2010. He was frocked on 4 December

2008.

f. In early March 2010, Petitioner did not participate in
the March 2010 exam since he believed he was selected from the
previous exam and did not have to retake the exam. There is no
evidence that he was ever notified that he was ineligible to
participate in advancement exams or to advance prior to taking
the E-6/AE1 exams. However, in mid-March, Petitioner was
notified that his September 2009 exam had been invalidated.
Apparently, neither Petitioner, his command, nor NPC were aware
that he was ineligible to participate in the exam cycle.

g. In addition, NPC invalidated the results of all of his
E6 advancement exams. This had the effect of setting aside his
scheduled advancement (from the September 2009 cycle) and
depriving him of PNA points (earned on prior advancement
cycles). NPC took this action because they learned that
Petitioner had never had a DONCAF adjudicated security
clearance.

hs Upon being notified of the deficiency in his clearance
status, in late March 2010, Petitioner re-submitted the required
security questionnaire documents to obtain the required security
clearance. He received his final adjudicated security clearance
promptly and without difficulty or hindrance on 19 June 2010.
NPC has not, however, revalidated his exams.

i. In September 2010, with his final adjudicated
clearance, he participated in the E6/AE1 Navy-wide advancement
examination and was selected and advanced with an effective date

of 16 June 2011.

j. Petitioner has applied to this Board seeking to have
his E6/AE1 advancement exams validated retroactively for PNA
points to apply toward his September 2009 advancement exam. He
States that he was unaware that his clearance status was
deficient. He had submitted the required security questionnaire
documents long ago upon entering the Navy. He had graduated
from AE “A” school and been transferred several times. He had
advanced from E-3 to E-5. He was serving in his rate, and he
had been allowed to participate in several exam cycles. He had
never been held back in any way from progressing through his
Navy career due to security clearance issues and he was not
aware that there was a deficiency.

3
Docket No. 07085-10

k. Petitioner’s commanding officer strongly endorses his
request. He states that “this Sailor was advanced to third
class petty officer and second class petty officer. It is my
belief that VFA-106, previous commands, and advancement
validation errors have caused this Sailor the loss of

advancement to first class petty officer”. In addition, in
March 2011, Petitioner’s current command (VFA-106) submitted an
Exception to Policy request to CNO, Code 13, enclosure (3). His

request was denied in April 2011, citing that “without the PNA
points from [cycles 200 and 203], his cycle 204 [September 2009]
score would still fall short of the minimum multiple required to
advance” and that “an exception to policy in this case would
provide one Sailor with an unfair advantage over all other
Sailors who were ineligible for advancement for similar reasons
but were not allowed to take the exam”.

1. Although a “Plan of the Week” (POW) from Petitioner's
last command could not be obtain, a current POW from VFA-106
(where he was also allowed to participate in an advancement exam
without a final adjudicated clearance), fails to disclose any
evidence that the requirement to hold a security clearance was
widely known or publicly announced.*

m. Review of Petitioner’s September 2009 Worksheet,
(enclosure 4) for the exam also fails to disclose any evidence
that Petitioner was notified or aware of the requirement to hold
a security clearance in order to participate in the advancement
cycle. Nor does it disclose any evidence that Petitioner was
aware of any deficiency in his clearance status.

n. Petitioner had never “lost” or had his security
clearance revoked at any time. During his service in the Navy,
he has never been involved in misconduct to lose or forfeit his
security clearance. For the entire time he has been in the
Navy, after his initial training, he served in his rating.

o. By enclosures (2) and (3), NPC Code 811 (Career
Progression Department) and CNO Code 13, recommends that no
relief be granted. NPC and CNO reasons as follows: (a) Under
the governing instruction, he was not qualified to participate
in the exam cycle; and (b) Allowing him to advance would be

 

1 Petitioner has since transferred from the command where he took the
September 2008 E6/AE1 Navy-wide advancement exam. His previous command did
not hold copies of the Plan of the Week (POW) from September 2009. However,
Petitioner has provided a copy of the October 2009 POW from his current
command.

4
Docket No. 07085-10

unfair to other Sailors who were properly barred from taking
exams for the same reasons at other commands.
CONCLUSION

Upon review and consideration of all the evidence, the
Board concludes that Petitioner’s request warrants favorable
action. The Board determined the following: The Board was
convinced that both Petitioner and the Navy were unaware of any
deficiencies in his clearance status that would disqualify him
from participating in an exam cycle prior to March 2010. His
career progression had not been impeded in any way. He had
attended schools, transferred, taken advancement exams, advanced
and worked in his rating free from any impediment. Once the
deficiency was identified, it was rectified, suggesting that if
it had been identified earlier, it would have been resolved
earlier. Petitioner’s commanding officer strongly endorses
Petitioner’s request and finds that the errors in this case are
not attributable to the Petitioner. The Board carefully
considered the comments made in enclosures (2) and (3). The
Board understood that, under the applicable regulations,
Petitioner was strictly ineligible to participate in the exam.
However, balancing the factors that militate in favor of relief
against those that militate against, in the Board’s view, the
matter he should be resolved in favor of the Petitioner.
Therefore, the Board concludes that the record should be
corrected to validate Petitioner’s E-6/AE1 advancement
examinations from the relevant cycles.

RECOMMENDATION:

That Petitioner’s naval record be corrected, where appropriate,
as follows:

a. Petitioner's E-6/A0l September 2008, March 2009, and
September 2009 Navy-wide advancement examinations will be
revalidated.

b. Petitioner will receive PNA points from the September
2008, and March 2009 Navy-wide advancement exams.

c. Petitioner was advanced from the September 2009 Navy-
wide advancement examination with an effective date of 16 June
2010, with a Time In Rate date of 1 January 2010.

d. A copy of this Report of Proceedings will be filed in
Petitioner’s naval record.
Docket No. 07085-10

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.

[sbbean 4.WZ

ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in

enclosure (3) and having assured compliance with the provisions
of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723), it is
hereby announced that the foregoing corrective action, has been
approved by the Board on behalf of the Secretary of the Navy.

11 October 2011 Ly .
W. DEAN a
Executive Dive eC