DEPARTMENT OF THE NAVY
BOAND TOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51060

 

HD
Docket No. NR7175-13
24 April 2014

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

Sub}:
REVIEW OF NAVAL RECORD

Ref: fa) 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 12 Feb 13 w/attachments
(2) PERS-32 memo dtd 29 Nov 13
(3) PERS-00d ltr dtd 16 Jan 14
(4) Subject’s ltr dtd 18 Mar 14 w/fenclosures

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 removal of the enlisted performance evaluation report
for 16 September 2011 to 22 February 2012 (copy at Tab A) and
advancement to LSC (pay grade E-7) retroactive to August 2012,

>. The Board, consisting of Messrs. Hicks, Spooner and Swarens,
reviewed Petitioner's allegations of error and injustice on .

24 April 2014, 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 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. Enclosure (1) was filed in a timely manner.
c. Petitioner was selected for advancement to LSC from Cycle
210 and she was frocked, with a projected time in rate date of
1 September 2011 and effective date of 16 August 2012 {dates provided
by Navy Personnel Command (NPC), PERS-812).

d. The contested performance evaluation report, submitted by
Petitioner’s commanding officer (CO) on 22 February 2012, withdrew
her recommendation for advancement. Block 43 (“Comments on
Performance”) stated her “actions prior to her frocking, lack of
initiative and inability to grasp the responsibility required of a
CPO [chief petty officer] clearly exhibit her unpreparedness to
effectively serve as an E-7.” On the basis of the CO's withdrawal
of her recommendation for advancement, she was not advanced.

e. On 13 January 2012, Petitioner submitted a complaint of
wrongs under Article 138, Uniform Code of Military Justice, against
her CO, alleging he wrongfully removed her frocking authorization.
In subsequent addendums, she alleged that her performance evaluation
report marks were wrongfully lowered and her advancement
recommendation wrongfully withdrawn. On 1 November 2012, the

Assistant Secretary of the Navy (Manpower and Reserve Affairs) upheld
the decision of the General Court-Martial Convening Authority
(GCMA), Commander, Naval Air Force Atlantic, to deny relief.

£. On 23 January 2011, an LS1 Y---, who belonged to the same
command as Petitioner, was arrested for driving under the influence
of alcohol (she was ultimately convicted). Petitioner was a
passenger in her own vehicle, with LS1 Y--- as the designated driver,
when the incident occurred. Petitioner notified a senior member of
her command, SHCM (pay grade E-9) W---, of the incident. On 14
October 2011, she appeared before her CO at “Captain's Counseling.”
The GCMA (letter dated 23 April 2012) found that Petitioner failed
to report her shipmate’s incident, and that she exhibited a “complete
lack of decorum and military bearing while being counseled by [her

co] .”

g. Petitioner contends that the evaluation at issue, the
removal of her frocking authorization and the withdrawal of her
recommendation for advancement were unjust and unwarranted, as she
did notify SHCM W--- of the incident involving LS1 Y---, and she was
not disrespectful to her CO at the “Captain's Counseling.”

h. At enclosures (2) and (3), the NPC offices with cognizance
over the subject matter of Petitioner’s case have commented to the

effect that her request should be denied.
i. With enclosure (4), Petitioner's reply to the advisory
opinions, she provided a statement dated 3 March 2014 from the command
chaplain who was present at the “Captain’s Counseling.” He stated
that the CO felt reporting the incident to SHCM W--- “wasn’t enough.”
He further stated that “At absolutely no point did [Petitioner]
disrespect [her CO].” He concluded by stating “It is unfortunate
that [Petitioner's] career has been ruined because of another
Sailor's lapse in judgment.”

j. Petitioner also alleges that she was the victim of reprisal
for protected communications, specifically, her complaint of wrongs
and a complaint that she had been the victim of a sexual attack. The
Commander, U. S. Fleet Forces Command Inspector General (IG)
conducted a preliminary inquiry (PI) that determined further
investigation was not warranted. The Naval Inspector General agreed
and forwarded the PI to the office of the Department of Defense IG,
which concurred with the findings of the PI.

CONCLUSION:

Upen review and consideration of all the evidence of record,
notwithstanding enclosures (2) and (3), and especially in light of
the chaplain’s statement at enclosure (4), the Board finds an
injustice warranting the requested relief. In this regard, the
Board finds that Petitioner did report the incident involving LS1
y--- to a senior member of her command, and it further finds she was
not disrespectful to her CO at the “Captain’s Counseling.” in view

of the above, the Board recommends the following corrective action:

RECOMMENDATION :

a. That Petitioner's naval record be corrected by removing the
following enlisted performance evaluation report and related
material:

Period of Report
Date of Report Reporting Senior From To

22 Feb 12 MEE S22 Fed?

b. That there be inserted in Petitioner’s naval record a
memorandum in place of the removed report containing appropriate
identifying data concerning the report; that the 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.

c. That appropriate corrections be made to the magnetic tape
or microfilm maintained by NPC.

d. That Petitioner's record be corrected further by removing
any service record page 13 (“Administrative Remarks”) or other entry
dated on or about 22 February 2012 withdrawing her recommendation
for advancement.

e,. That her record be corrected further to show she was advanced
to LSC with a time in rate date of 1 September 2011 and effective
date of 16 August 2012.

f. That any material or entries relating to the Board's
recommendation be corrected, removed or completely expunged from
Petitioner's record and that no such entries be added to the record
in the future.

g. 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.

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your review
and action.

Retake

ROBERT D. ZSALMAN
Acting

viewed and approved: disapproved . See attached Aves ermal
Wien rendition.

ebb tt oe

Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Am 4D548
Washington, DC 20350-1000
DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
(MANPOWER AND RESERVE AFFAIRS)
TOCG NAVY PENTAGON
WASHINGTON, D.C. 26350-1600

 

June 24, 2014

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION
OF NAVAL RECORDS

Subj; BCNR PETITION CF [a

The subject petition was forwarded to me pursuant to the provisions of the
SECNAVINST 5420.193, Section 6.e.(1)(a) because the Board’s recommendation is

inconsistent with the advisory opinion provided by the NPC offices at enclosures 2 and 3
of the Board’s record in this petition. Further, the Secretary has delegated authority to
me to render decisions in such cases. Pursuant to this authority, the recommendation of
the Board for Correction of Naval Records to grant the Petitioner’s request for relief is
disapproved. I have considered the Petitioner's case under the provisions of 10 U.S.C. §
1552 and determined that she is not entitled to have her record corrected to remove her
detachment evaluation report covering the period of September 16, 2011, to February Des
2012; to be advanced to LSC (E-7) with a time in rate date of September 1, 2011, and an
effective date of August 16, 2012; or to be provided any other relief.

The Petitioner was selected for advancement and frocked to LSC. On January 23,
2011, while stationed aboard the USS THEODORE ROOSEVELT, the Petitioner was a
passenger in her own car when an LS1 was arrested for driving the car while under the
influence of alcohol. The LS1 was driving Petitioner’s car because the Petitioner
believed she had drunk too much herself to drive. The Petitioner notified a senior
member of her command, a SHCM (E-9), about the incident. Nevertheless, at a
Captain’s Counseling on October 14, 2011, the Petitioner's commanding officer (CO)
found she failed to adequately report her shipmate’s incident; found that she exhibited a
“complete lack of decorum and military bearing while being counseled”; and found that
she failed to take ownership of, or accountability for her actions. As a result, the CO
revoked her frocking to LSC. The CO informed the Petitioner that he would re-frock her
to LSC after receiving positive recommendations from her chain-of-command. He also
said he would extend the Petitioner aboard the ROOSEVELT until August 2012 to give
her chain-of-command time to evaluate her performance. The Petitioner effectively
declined the CO’s offer by negotiating orders to leave the ship in February 2012, During
the period between the Captain’s Counseling and her detachment, the Petitioner had four
documented performance issues including three counselings. In the detachment
performance evaluation that she contests, the Petitioner's CO cited her “actions prior to
her frocking, lack of initiative, and inability to grasp the responsibility required ofa
[chief petty officer]” - “clearly exhibit[ing] her unpreparedness to serve effectively as an
E-7” — as the bases for not recommending her for advancement.
In support of its recommendation for relief, the Board relies on the recent
statement of a chaplain who said he was present at the October 2011 Captain’s
Counseling. In his statement, dated March 3, 2014, the chaplain states that, “At
absolutely no point did [the Petitioner] disrespect” the CO, and that she “maintained her
professionalism.” However, three statements made in January 2012 by other personnel
present at the counseling — the ROOSEVELT’s Command Master Chief and two Senior
Chiefs — describe the Petitioner as argumentative, disrespectful, unprofessional, and
failing to take responsibility for her actions, even after she was told several times to lower
her voice and her CO gave her multiple chances to regain her composure. These more
specific and contemporaneous statements, by themselves and when considered in the
context of the entire record, carry far more weight than the chaplain’s recent generalized
statement and substantiate the CO’s revocation of her frocking to E-7 and the detachment
evaluation report she received.

For these reasons, the Petitioner’s Wd relief is denied.

Robert L. Woods
Assistant General Counsel
(Manpower and Reserve Affairs)