DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 §. COURTHOUSE RD SUITE 100%
ARLINGTON VA 22204-2490

 

BAN
Docket No.NRO3163-13
12 September 2013

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

 

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

Fnel: (1) DD Form 149 w/attachments
(2) NPC memo 1430 Ser 811/210 of 24 Jul 2013
(3) NAVPERS 1626/7 Report and Disposition of Offenses dtd
11 May 2011
NAVPERS 1616/26 dtd 30 Jun 2011
Naval Message 0519452 AUG 11
NAVPERS 1616/26 dtd 12 Mar 2012
Defense Finance and Accounting Service Military Leave
and Earning Statement dtd 1-31 Aug 2011
(8) Commanding Officer’s Recommendation Letter 1430 Ser
DDG 110/085 of 15 Mar 2013

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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 show that his selection
to Chief Petty Officer/E-7 be reinstated effective 16 August
2011.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman and
George, reviewed Petitioner’s allegations of error and injustice
on 20 August 2013 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 an advisory opinion furnished by the Naval
Pergonnel Command (NPC) attached as enclosure (2) that
recommended 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:
Docket No.NR03163-13

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 April 2013, Petitioner submitted a request to the
Board requesting a reinstatement of his advancement to CPO/E-7,
enclosure (1).

¢c. In January 2010, Petitioner participated in the E-7
Navy-wide advancement examination for Chief Petty Officer (CPO).
In May 2010, he was notified that he had become board eligible,
and in August 2010, Re was selected for CPO/E-7 with an
effective date of 16 August 2011.

d. However, on 11 May 2011, before Petitioner’s effective
date of advancement, he received nonjudicial punishment (NUP)
for two specifications of failure to obey a lawful regulation by
wrongfully making an unwelcome sexual advance, in that he held a
Sailor’s hand (E-4}) and attempted to kiss her, and by having an
unduly familiar relationship with an E-4 (same individual). He
-was found guilty at NJP and given restriction and extra duty for
45 days, forfeitures of one-half month's pay for two month, and
a reduction in rank to #-5 (all suspended for six months),
enclosure (3).

e. On 13 May 2011, Petitioner’s command submitted a
special evaluation documenting the NUP but checked “Progressing”
instead of “Significant Problems” as required by the BUPERS
Advancement Manual 1430.16F, enclosure (4). In addition, the
command failed to provide a page 13 entry withdrawing
Petitioner’s advancement to CPO. Although the command did send
a message to Naval Education and Training Professional
Development and Technology Center (NETPDTC) withdrawing
Petitioner's advancement recommendation on 5 August 2011,
enclosure (5), they failed to correct their error in regards to
the evaluation in a timely manner. In September 2011, the
command finally corrected their error to Petitioner’s
evaluation; however, he had already begun receiving E-7 pay on
16 August 2011, enclosures (6) and (7).?*

1 Pursuant to the BUPERSINST 1430.16F, in order to withhold a member’s
advancement recommendation the command needed to do the following: 1) to
issue a page 13 to Petitioner stating that the advancement is being withheld
(the page 13 must be signed by the member and the member’s commanding officer
or officer in charge. The commanding officer’s signature may not be
delegated. If the member refuses to sign, the signature block wili be
annotated ‘member notified but refused to sign’, 2) a message needs to he
submitted to the Naval Education and Training Professional Pevelopment and
Technology Center (NETPDTC) notifying them of.the withholding status and 3) A
Docket No.NRO3163-13

Petitioner cites this reason as the sole factor to
reinstate his advancement to E-7/O0SC and has his current
commanding officer’s support and endorsement, enclosure (8).

f. By enclosure (2), NPC recommends that no relief be
granted. NPC reasons that, the Petitioner’s previous command
who imposed NJP clearly took administrative action in good faith
to withhold his advancement, that his command has since
corrected his adverse evaluation and correctly removed his
recommendation for advancement to E-7.

CONCLUSION:

Upon review and consideration of all the evidence of the record,
the Board concludes that Petitioner’s request warrants favorable
action. The Board believes that due to his inappropriate
behavior he received an appropriate punishment by receiving NJP
in his official record. However, the Board notes that
Petitioner’s command did not adhere to the proper procedures
that were required by the BUPERSINST 1430.16F in order to
properly withhold Petitioner’s recommendation for advancement.
Furthermore, the Board takes into account Petitioner’s strong
support from his current command. Therefore, the Board believes
that the interests of justice would be better served if
Petitioner were reinstated to E-7/OSC from the January 2010
Navy-wide Chief Petty Officer advancement examination and was
selected to E-7 with an effective date of 16 August 2011.

RECOMMENDATION :

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

a. That Petitioner be reinstated to pay grade E-7/O0SC from
the January 2010 Navy-wide Chief Petty Officer examination and
selection board, with an effective date of 16 August 2011 and a
Time In Rate date of 1 September 2010.

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

 

 

 

proper evaluation removing advancement recommendation, noting significant
problems. ‘Failure to comply with the required actions prior to the
advancement date will result in the member retaining scheduled advancement”
(BUPERSINST 1430.16F chapter 7, para. 721).
Docket No.NR03163-13

foregoing is a true and complete record of the Board’s
proceedings in the above entitled matter.

brovte tL
ROBERT D, 4ASALMAN ' BRONTE I. MONTG@MER
Recorder

Acting Recorder

5. The foregoing action of the Board is submitted for your

review and action.
We SRN Ww

Executive Dir

   
  

Reviewed and approved: