DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE RD SUITE 1004
ARLINGTON VA 22204-2490

 

BAN
Docket No. 10656-11
13 February 2012

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

Subj: REVIEW OF NAVAL RECORD OF CES ARES LE,
a

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments
(2) Naval Personnel Command (NPC) memo 1430 Ser 811/549
of 8 Dec 11
(3) Office of the Assistant Secretary, Manpower and
Reserve Affairs, Limited Delegation of Authority memo
27 Sept 11
(4) NETPDTC Form 1430/3 for advancement cycle 208

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-5/HT2
Navy-wide advancement examinations and show that he met the
criteria to be advanced to B-5/HT2 from the September 2010
eycle.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George reviewed Petitioner’s allegations of error and injustice
on 30 January 2012 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
from the Navy Personnel Command (NPC) Code 811 (Career
Progression Department) 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
Docket No. 10656-11

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 2005. Over the next
five years, he advanced from El to E4 and participated in Aix
E-5 advancement cycles. During this time, he did not have a
DONCAF adjudicated security clearance. In 2011, upon realizing
that he did not have the required clearance, NPC invalidated the
results of his E-5 advancement cycles entirely. Petitioner
avers that he was unaware of any deficiency in his clearance
status that would disqualify him from competing for advancement .
He cites the Navy’s actions between 2005 and 2010 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 E-5 exam cycles.

d. Examination of Petitioner's naval record reveals the
following: Petitioner enlisted in the Navy in August 2005. He
completed and submitted the standard security questionnaire
documents required of all enlistees. He attended and graduated
HT “A” in April 2006, then transferred to the Assault Crart, Ueie
Five (ACU-5). While stationed there, he attended and graduated
from HT ‘“C” school, and participated in the March 2008,
September 2008, March 2009, September 2009, and March 2010,
E-5/HT2 Navy-wide advancement examinations. He passed the
exams, but did not achieve the final multiple scores necessary
to advance. Therefore, since he “Passed but not Advanced”

(PNA), he was entitled to and received PNA points. Those points

may be used in subsequent exam cycles to ralse a participant's
final multiple score.

e. In September 2010, Petitioner again participated in the
E-5/HT2 advancement exam and was selected for advancement with
an effective date of 16 May 2011. He was frocked in December
2010. Apparently, neither Petitioner, his command, nor NPC were
aware that he was ineligible to participate in the exam cycles.

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Docket No. 10656-11

There is no evidence that he was ever notified that he was
ineligible to participate in advancement exams or to advance.

f£. On 16 May 2011, Petitioner started to receive pay and
allowances aS an E-5/HT2. However, three months later, the
Naval Personnel Command (NPC) invalidated the results of his
March 2008, September 2008, March 2009, September 2009, March
2010 and September 2010 advancement exams due to Petitioner not
having a valid final adjudicated clearance. This had the effect
of not only setting aside bis scheduled advancement (from the
September 2010 cycle) and depriving him of PNA points (earned on
the prior advancement cycle), but this also put him in a
overpayment status. NPC took this action because they learned
that Petitioner had never had a DONCAF adjudicated security

clearance.

Gs In August 2011, after being notified of the deficiency
in his clearance status, Petitioner re-submitted the required
security questionnaire documents to obtain the required security
clearance. However, by this time, he had missed the opportunity
to participate in the March 2011 and September 2011 exam eycles.
He received his final adjudicated security clearance without

undue difficulty or hindrance on 31 October 2011.

h. Petitioner has applied to this Board seeking to have
his E-5/HT2 March 2008, September 2008, March 2009, September
2009, and March 2010 advancement exam validated retroactively
for PNA points to apply toward his September 2010 advancement
exam for advancement. 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 HT “A” and “C” schools and had been
able to take the E-4 and E-5 exams without any prior issues. 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 that would disqualify him from
competing for advancement. Petitioner's commanding officer (CO)
has strongly endorsed his request stating Ss ieee
Sm is 2 COP notch sailor and should not be penalized for
failures in the clearance adjudication process”.

4. Review of the “Plan of the Day” (POD) from his
current command for the September 2011 examination fails to
disclose any evidence that the requirement to hold a security
clearance was widely known or publicly announced. *

 

1 petitioner has provided a copy of his command’s POD for the September 2011
since his previous "C" school command no longer has a copy of the September
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Docket No. 10656-11

k. Review of Petitioner’s last Worksheet, (enclosure 4)
for the September 2010 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.

1. 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 Ferfeit his
security clearance. For the entire time he has been in the

Navy, after his initial training, he served in his rating.

m. By enclosure (2), NPC Code 811 (Career Progression
Department ) recommends that no relief be granted. NPC reasons
as follows: (a) Under the governing instruction, he was not
qualified to participate in the exam cycle; (b) 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 (c) 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, 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 any exam cycle in 2008, 2009 or 2010. His
career progression had not been impeded in any way. He had
attended schools, transferred, taken advancement exams, 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 enclosure (2). 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

 

2010 POD. The POD does not mention anything regarding Sailors needing a
final adjudicated clearance in order to compete for advancement.
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Docket No. 10656-11

should be resolved in favor of the Petitioner. Therefore, the
Board concludes that the record should be corrected to validate
Petitioner's E-5/HT2 advancement examinations from the relevant

cycles.
RECOMMENDATION :

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

a. Petitioner’s E-5/HT2 March 2008, September 2008, March
2009, September 2009, March 2010 and September 2010 Navy -wide
advancement examinations will be revalidated.

b. Petitioner will receive PNA points from the March 2008,
September 2008, March 2005, September 2009, and March 2010,
Navy-wide advancement exams.

c. Petitioner was advanced from the September 2010 Navy-
wide advancement examination with an effective date of
16 May 2011 and a Time In Rate date of 1 January 2011.

da. A copy of this Report of Proceedings will be filed in
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. a

AR

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 9123), ¢& is
hereby announced that the foregoing corrective action, has been
approved by the Board on behalf of the Secretary of the Navy.

13 February 2012 ky

‘um:

Executive Diyettor