DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 §. COURTHOUSE RD SUITE 1001
ARLINGTON VA 22204-2490

 

BAN
Docket No. 11272-11
13 February 2012

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

Subj: REVIEW OF NAVAL RECORD OF mee ea

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

Encl: (1) DD Form 149 w/attachments
(2) Naval Personnel Command (NPC) memo 1430 Ser 811/563
of 15 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-4/A03
Navy-wide advancement examinations and show that he met the
criteria to be advanced to E-4/A03 from the September 2010
cycle.

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. 11272-11

regulations within the Department of the Navy.

b. Under BUPERINST 1430.16F, (Advancement Manual for
Fnlisted 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 2009. Over the next
year, he advanced from El to E3 and participated in two E-4
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-4 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 2009 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-4 exam
cycles.

d. Examination of Petitioner’s naval record reveals the
following: Petitioner enlisted in the Navy in June 2009. He
completed and submitted the standard security questionnaire
documents required of all enlistees. He attended and graduated
AO “A” school in August 2009. Petitioner then transferred to
the Strike Fighter Squadron Eighty Seven (VFA-87) in November
2009, and attended and graduated AO *C” school in January 2010.
In March 2010, he participated in the E-4/R03 Navy-wide
advancement examination. He passed the exam, but did not
achieve the final multiple score 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 raise a participant's final
multiple score.

e. In September 2010, Petitioner again participated in the
E-4/A03 advancement exam and was selected for future
advancement. He was frocked in November 2010. Apparently,
neither Petitioner, his command, nor NPC were aware that he was
ineligible to participate in the exam cycles. There is no

2
Docket No. 11272-11

evidence that he was ever notified that he was ineligible to
participate in advancement exams or to advance.

f£. In approximately February 2011, NPC invalidated the
results of his March 2010 and September 2010 advancement exams.
This had the effect of getting aside his scheduled advancement
(from the September 2010 cycle) and depriving him of PNA points
(earned on the prior advancement cycle). NPC took this action
because they learned that Petitioner had never had a DONCAF

adjudicated security clearance.

g. In March 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 exam cycle. He received his
final adjudicated security clearance without undue difficulty or

hindrance on 14 September 2011 .

h. In September 2011, with his final adjudicated
clearance, Petitioner participated in the E-4/A03 advancement
exam and was selected for advancement.

4. Petitioner has applied to this Board seeking to have
his E-4 March 2010 and September 2010 advancement exams
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 RO °A" and *c”
schools and had been able to take the E-4 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.

j. Review of the “Plan of the Week” (pow) from his
current command for the September 2010 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 POW's for the September 2010
Navy-wide advancement exam. The POW’s do not mention anything regarding
Sailors needing a final adjudicated clearance in order to compete for

advancement.
3
Docket No. 11272-11

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 forfeit 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 the exam cycles in 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. 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 exams. 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 B-4/A03 advancement
examinations from the relevant eyeles.
Docket No. 11272-11

RECOMMENDATION:

 

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

a. Petitioner’s E-4/A03 March 2010 Navy-wide advancement
examination will be revalidated.

b. Petitioner will receive PNA points from the
March 2010, Navy-wide advancement exam.

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

d. 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 794.6to)) LE 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.

fitbiam ee

ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
Bi 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.

13 February 2012 \y

We ie
Executive rector
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

TIR
Docket No: 5455-11
8 March 2012

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 6 March 2012. The names and votes of the

members of the panel will be furnished upon request.

Your allegations of error and injustice were reviewed in
accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary
material considered by the Board consisted of your application,
together with all material submitted in support thereof, your
naval record, and applicable statutes, regulations, and policies.

After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.

You enlisted in the Navy on 26 June 2001 at age 17 and began a
period of active duty on 12 July 2001. You served without
Qisciplinary incident until 13 February 2003, when you received
nonjudicial punishment (NJP) for assault and using provoking
speech and/or gestures. The punishment imposed was restriction
and extra duty for 30 days, reduction in paygrade, which was
suspended for six months, and a $1,300 forfeiture of pay.

On 3 May 2005 you received NUP for absence from your appointed
place of duty. Shortly thereafter, on 15 June 2005, you received
an adverse performance evaluation in which your reporting senior
stated that you were a below average Sailor who required direct
supervision, and that you were not recommended for advancement,
retention, or reenlistment. The records also contains an
administrative remarks entry dated 15 June 2005 which states that
your recommendation for advancement had been Withdrawn due to
your substandard performance.
On 11 July 2005 upon completion of your required active service,
you were honorably released from active duty and transferred to
the Navy Reserve. At that time you were not recommended for
further retention or reenlistment and were assigned an RE-4
reenlistment code. On 25 June 2009 you were honorably discharged
at the expiration of your enlistment.

 

The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to change your reenlistment code.
Nevertheless, the Board concluded these factors were not
sufficient to warrant a change in your reenlistment code because
of your misconduct which resulted in two NUPs. Further, the
Board concluded that your nonrecommendation for reenlistment was
sufficient to support the assignment of an RE-4 reenlistment
code, which is authorized by regulatory guidance. Accordingly,
your application has been denied.

The Board suggested that you may wish to apply for a waiver of
your RE-4 reenlistment code, if you would like to reenlist, with
branches of the armed forces other than the Navy.

 

It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

ly

W. DEAN P F
Executive Dilrac