DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hd
Docket No. 12173-10
9 June 2011
From: Chairman, Board for Correction of Naval Records
Los Secretary of the Navy
REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 27 Oct 10 w/attachments
(2) PERS-834 ltr dtd 29 Dec 10
(3) Subject's ltr dtd 31 Jan 11
(4) PERS-834 ltr dtd 25 Apr 11
(5) Subject’s ltr dtd 17 May 11
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 the detachment for cause (DFC) from duty as
Commanding Officer, Mine Countermeasures Crew PERSISTENT, requested
by the Commander, Mine Countermeasures Squadron TWO letter of 3 March
2009 and approved by the Commander, Navy Personnel Command (NPC)
letter of 9 September 2009. A copy of the DFC documentation is at
Tab A.
2. The Board, consisting of Messrs. Dixit, McBride and Vogt,
considered Petitioner’s application on 3 March 2011 and requested
that a second advisory opinion be obtained fromNPC. A second panel,
consisting of Ms. Trucco and Messrs. Grover and Sproul, reviewed
Petitioner's allegations of error and injustice on 9 June 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 second panel of 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. In enclosure (2), PERS-834, the NPC office with cognizance
over the subject matter of this case, commented to the effect that
Petitioner’s request should be denied, but did not address the
Commander, Mine Countermeasures Squadron TWO letter of 7 October 2010
Petitioner had provided, which stated that it had come to his
attention that many significant issues that led to poor performance
on Petitioner’s ship’s inspection were “endemic to the ship class,"
that he recommended vacating the DFC, and that “if faced with the
same scenario now, I probably would not relieve the Commanding
Officer without further cause.”
c. Enclosure (3) is Petitioner’s response to enclosure (2).
d. In response to the Board's request for a second advisory
opinion addressing the Commander, Mine Countermeasure Squadron TWO
letter of 7 October 2010, PERS-834 provided enclosure (4), commenting
as follows:
If poor material condition, that could not have been
rectified in the 22 months [Petitioner] was onboard,
is the primary cause of the [inspection] failure and
not a result of poor leadership, the DFC should be
vacated. However if poor leadership, as stated in
the original request for DFC, over the 22 months he
was attached to the ship was the primary cause, the
DFC should remain as part of his record.
e. Enclosure (5) is Petitioner’s response to enclosure (4).
f. Petitioner’s record includes an adverse fitness report for
20 December 2008 to 31 March 2009 (copy at Tab B) and the Commander,
NPC letter dated 17 September 2009, Subject: Status inthe U.S. Navy
(copy at Tab C), both of which are based on the contested DFC.
CONCLUSION :
Upon review and consideration of all the evidence of record, and
especially in light of the Commander, Mine Countermeasures Squadron
TWO letter, the Board finds an injustice warranting the following
corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing the
Commander, Mine Countermeasures Squadron TWO letter of 3 March 2009
requesting Petitioner’s DFC from duty as Commanding Officer, Mine
Countermeasures Crew PERSISTENT and related material, to include the
following:
(1) Petitioner's first endorsement dated 3 March 2009.
(2) Petitioner’s statement dated 20 March 2009.
(3) First endorsement on Petitioner’s statement dated 26
August 2009.
(4) Second endorsement on Petitioner's statement dated 16
April 2009.
(5) Third endorsement on request for DFC dated 8 September
2009.
(6) Commander, NPC letter dated 9 September 2009.
b. That his record be corrected further by removing
all documentation based on the DFC, to include the following:
(1) Fitness report for 20 8 to 31 May 2009,
submitted — USN and dated 2 April
2009 and related material, including Petitioner’s
statement for the record dated 10 January 2010, the
reporting senior’s first endorsement dated 15 January
2010 and the reporting senior'’s fitness report
letter-supplement dated 6 August 2010.
(2) Commander, NPC (PERS-83) letter dated 17 September 2009,
Subject: Status in the U.S. Navy.
c. That there be inserted in Petitioner’s naval record a
memorandum in place of the fitness report to be removed containing
appropriate identifying data concerning the report; that such
memorandum state that the report has been removed by order of the
Secretary of the Navy in accordance with the provisions of federal
law and may not be made available to selection boards and other
reviewing authorities; and that such boards may not conjecture or
draw any inference as to the nature of the report.
d. That any material or entries inconsistent with or 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.
e. 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.
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.
ponatna/t /aetivr
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
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.
Tach \. Fen
fee W. DEAN PFEIFFER
Executive Director
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