DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Docket No. 02515-11
24 August 2011

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

Subj: REVIEW_OF NAVAL RECORD Qa

Ref: {a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments

(2) Navy Policy and Plans Office (N132) memo 5800 Ser
N13/234 of 17 Jun 11

(3) BCNR Questionnaire in case of QD

(4) Department of the Navy Profile Sheet for the March 10
Navy-wide advancement examination (rec’d PNA points,
but later invalidated)

(5) Department of the Navy Profile Sheet for the Sept 10
Navy-wide advancement examination (Selectee)

(6) Department of the Navy Profile Sheet for the Sept 10
Navy-wide advancement examination (Invalidated)

(7) SECNAV Instruction M-5510.30 of Jun 06

8} BUPERSINST 1430.16F of 2 Nov 07

(9) Commanding Officer’s endorsement ltr 1418 Ser 00/091
of 6 Mar 11

{10) JCAVS Summary date 15 Apr 11

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
September 2010 cycle 208, Navy-wide advancement examination and
show that he met the criteria to be advanced to E-4/A03.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner’s allegations of error and injustice
on 28 July 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 enclosure (2) which is a recommendation
Docket No. 02515-11

from the CNO Navy Policy and Plans Office (Code Ni32) 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:

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

b. Petitioner entered active duty service in February
2009. He attended AO “A” school in the spring 2009. Upon
completion of school he received transfer orders to the USS
RONALD REAGAN (CVN-76) in August 2009. Shortly thereafter, he
was advanced to E-3 in November 2009. Enclosure (3).

dad. In March 2010, Petitioner participated in the E-4/A03
Navy-wide advancement examination. He passed but did not
advance to the next higher pay-grade. His exam was never
invalidated due to not having a valid security clearance.
Enclosure (4). However, in September 2010, Petitioner again
participated in the E-4/A03 Navy-wide advancement examination.
At both times, Petitioner, his chain of command, his educational
service officer and his command career counselor all believed he
was fully eligible to participate in the exam cycles. In
November 2010, the advancement results were released and
Petitioner was notified that he achieved the cutting score and
was designated as a “selectee”. Enclosure (5).

e. In February 2011, before his effective date of
advancement, his examination was invalidated by the Naval
Education and Training Professional Development and Technology
Center (NETPDTC) because he did not have (and never had) a final
adjudicated security clearance. Enclosure (6).

f. Navy regulations require members who are serving in
certain ratings to have security clearance eligibility, 7

 

1 pursuant to the SECNAV M-5510.30, June 2006, the term’ security clearance
eligibility” has replaced “security clearance,” when referring to a formal
determination made by an authorized adjudicative entity that an individual
meets national security standards. Security clearance eligibility is
officially recorded and subject to due process procedures. Security
clearance now refers to a state that exists whenever eligibility has been ©
properly established by an authorized adjudicative entity and access has been
properly authorized by the command. Security clearance is understood to
exist at the level of access authorized. When a command authorizes access to
classified information pending completion and formal adjudication of the

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Docket No. 02515-11

enclosure (7). Additionally, under the BUPERSINST 1430.16F
(Navy Advancement Manual), members in those ratings who do not
have a continuous security clearance eligibility are not
authorized to compete for advancement *. Enclosure (8).

g. In early March 2011, Petitioner applied for a security

clearance. Prior to receiving his final adjudication, his
command allowed him, yet again, to take the advancement exam in
mid March 2011.

h. In March 2011, Petitioner also submitted a DD Form 149
to the Board for Correction of Naval Records seeking to have his
September 2010 advancement exam validated retroactively. He
states that it was “one of the most demoralizing, embarrassing,
and surprising experiences I have ever been through. I assumed
everything with my security clearance went through since I never
received any negative feedback..I received my orders and
transferred, I was sure I already had one”. Enclosure (1). He
had submitted his SF 86 long ago. He had graduated from AO “A”
school. He had advanced from E-1 to E-3. He was performing the
duties of his rate. And he had been allowed to participate in
the several advancement exams. He had never been held back in
any way from progressing through his career due to security
clearance issues and he was not aware that there was a
deficiency. Enclosure (1).

i. Petitioner’s commanding officer strongly endorses his
request. He states that “due to an administrative oversight and
through no fault of fi ssstsi‘SsSCSCSCS he was allowed to
participate in the September 2010 advancement examination and
subsequently scored high enough to be selected for promotion..and

frocked on 16 November 2010. The Education Services Office
failed to check the required security clearance..and allowed him
to participate in the exam”. Enclosure (9).

j- In April 2011, Petitioner's security clearance was
finally adjudicated by the Department of the Navy Central
Adjudication Facility (DONCAF). Petitioner was granted a

required PSI, this action was termed “interim clearance” in the past.
However, EO 12968 standards more accurately refer to this action as
“temporary access" because it is an access determination under command
purview. It is not a clearance determination and it carries no due process
benefits.

? All personnel designated in certain ratings and special programs as listed
in table 2-3 of BUPERINST 1430.16F, states “must maintain, as a minimum,
continuous security clearance eligibility” {Table 2-3 lists AC, AE, AG, AO,
AT, AW, AZ, CT, EOD, ET, PC, PT, GM, HT, IC, IS, IT, LN, MA, MC, MN, MT, ND,
OS PC, OM, SB, SO, STG, STS, and YN; Air crew and Nuclear Trained Personnel).

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Docket No. 02515-11

security clearance. The favorable adjudication took only 34
days. Enclosure (10). Petitioner had never “lost” or had his
security clearance revoked at any time. In fact, for the entire
time he had been in military service, he had worked in a
classified rating with classified material, under a temporary
access security clearance granted to him by the commanding
officer pursuant to the SECNAV M-5510.30 Instruction.

k. By enclosure (2), Navy Plans and Policy Office (N132)
recommended that no relief be granted. They reason as follows:
(1) Under the governing instruction, he was not qualified to
participate in the exam cycle; (2) Allowing him to advance would
be unfair to other Sailors who were properly barred from taking.
exams for the same reasons at other commands; and (3) Although
it is unfortunate that his exam was invalidated through no fault
of his own, a command admission of error is not adequate
justification for violation of the policies.

CONCLUSION:

Upon review and consideration of all the evidence in the record,
the Board concludes that Petitioner’s request warrants favorable
action. The Board determined the following: The following
factors militated in favor of relief: The Board was convinced
that Petitioner and the Navy were unaware of any deficiencies in
his clearance status prior to February 2011; he had submitted
the SF 86 much earlier; 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 error was identified, it was quickly
rectified, suggesting that if it had been identified earlier, it
would have been resolved earlier. Petitioner’s commanding
officer places the responsibility for the error on the education
service officer (the office that verifies that Sailors are
authorized and qualified to take an advancement exam), and not
on the Petitioner. He strongly endorses Petitioner’s request.
Furthermore, the Board carefully considered the comments made in
enclosure {2}. The Board understood that, under the applicable
regulations, Petitioner was strictly ineligible to participate
in the exam. And the Board understood that there may be others
who were properly barred from competing for advancements due. to
security clearance deficiencies. 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-4/A03
advancement examinations from the March and September 2010,
Docket No, 02515-11

cycles 207 and 208, and that any PNA points that may have been
taken away from the March 2010 exam be returned.

RECOMMENDATION:

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

a. Petitioner’s E-4/A03 advancement examination for cycle
208 will be revalidated. Petitioner will be advanced to E-4/A03
at the time he would have advanced if the exam had not been
invalidated.

b. Petitioner’s E-4/A03 advancement examination for cycle
207 will be revalidated and given PNA points as earned based on
the results. of the exam.

c. That a copy of the Report of Proceedings, be filed in
the 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.

poelean. 4. VE

 

ROBERT D. 2SALMAN WILLIAM J. HESS, IIT
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your

review and action.

\y Dew

W. DEAN PFET
Executive Di r

Reviewed and Atal