DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hd
Docket No. 07700-10
22 October 2010
From: Chairman, Board for Correction of Naval Records
TO; Secretary of the Navy
REVIEW OF NAVAL RECORD
Ref : (a} 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 10 Jul 10 w/attachments
(2) PERS-833 memo dtd 20 Aug 10 w/enclosures
(3) Subject’s ltr dtd 20 Sep 10
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 by removing all documentation of his removal from the
Fiscal Year (FY) 09 Active Duty Navy Lieutenant All-Fully-Qualified-
Officers List (AFQOL), a copy of which is at TabA. Healso requested
removing the Naval Inspector General (NAVIG) report of investigation
of which he was the subject dated 16 November 2007, a copy of which
is at enclosure (1) to his application (the report is not on file
in his naval record). He impliedly requested that his removal from
the FY 09 AFQOL be set aside and that his failure of selection to
lieutenant as a result of that removal be stricken.
2. The Board, consisting of eee ae
ice on
reviewed WE 1 1 ecations of error and injus
21 October 2010, 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 and applicable statutes,
regulations and policies.
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. Enclosure (1) was filed in a timely manner.
c. The contested NAVIG report substantiated charges against
Petitioner of sexual harassment and hostile work environment. The
Chief of Naval Operations (CNO) memorandum for the Secretary of the
Navy (SECNAV) dated 24 March 2010, a copy of which is at Tab A, noted
that Petitioner's commanding officer (CO) strongly urged his
promotion, in spite of the NAVIG report. The CNO summarized the CO's
position as follows:
[The CO] forwards his highest personnel recommeri@at ion
for [Petitioner’s] promotion. The investigation raises
questions to the thoroughness and due process provided
[Petitioner]. The evidence supporting the substantiated
allegation is at best sparse. [Petitioner] was not
provided the full results of the investigation. Denying
the promotion of an officer of this high quality on such
a weak basis does a disservice to both the officer and
the Navy.
Notwithstanding the CO’s support for Petitioner’s promotion, the CNO
recommended that he be removed from the AFQOL for the following
reasons:
[Petitioner’s] actions represent a significant departure
from the expected standards of conduct. When confronted
with indications that his leadership style necessitated
re-examination, [Petitioner] ignored the warning signs.
The result as substantiated by the [NAVIG] was a hostile
work environment. I do not have the requisite trust and
confidence to recommend this officer for promotion.
As also shown at Tab A, on 4 May 2010, SECNAV approved the CNO
recommendation to remove Petitioner from the AFOOL.
d. Had Petitioner not been removed from the AFQOL, and had he
been promoted to lieutenant, he would have been assigned a date of
rank and effective date of 1 September 2009. Heis onthe FY 11 AFQOL.
e. Petitioner fully concurs with his CO’s position, contending
that the NAVIG report left out material information, and he totally
disagrees with the CNO’s basis for recommending his removal from the
AFQOL.
—£. In enclosure (2), the Navy Personnel Command office with
cognizance over the subject matter of this case commented to the
effect relief should be denied. Enclosure (3) is Petitioner’s
rebuttal to the advisory opinion.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
notwithstanding the advisory opinion at enclosure (2), the Board
finds an injustice warranting approval of Petitioner’s application,
except his request to remove the NAVIG report.
The CO’s basis for supporting Petitioner’s promotion, which did not
persuade the CNO or SECNAV, does persuade the Board that he should
not have been removed from the AFQOL. While the Board recognizes
there are reasons to doubt the findings of the NAVIG report, it is
not convinced that the report is flawed to the extent it should be
removed, noting that it does not appear in Petitioner’s own record.
In view of the above, the Board recommends the following limited
corrective action:
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show he was
not removed from the FY 09 Active Duty Lieutenant AFQOL.
b. That his record be corrected further by removing all
documentation of or relating to his removal from the FY 09 Active
Duty Lieutenant AFQOL.
c. That his record be corrected further by removing his failure
of selection to lieutenant as a result of his removal from the FY
09 Active Duty Lieutenant AFQOL.
d. If Petitioner is found qualified in all respects, that he
be promoted to lieutenant with a date of rank and effective date of
1 September 2009.
e. That any material or entries relating to the Board's
recommendation be corrected, removed or completely expunged from
Petitioner's record and that no such entries or material be added
to the record in the future.
f. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of this
Report of Proceedings, for retention in a confidential file
maintained for such purpose, with no cross reference being made a
part of Petitioner's naval record.
g. That the remainder of Petitioner’s request be denied.
4. It is certified that a 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 JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your review
and action.
Reviewed and approved:
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