DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
7Ot S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
HD
Docket No. NR2968-14
21 August 2014
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub): el a
REVIEW OF NAVAL "RECORD “TRECONSIDERATTON)
Ref: (a) 10 U.S.C. 21552
Encl: (1) Counsel's brief in support of recon by SSB,
undtd and counsel’s amendment dtd 19 Feb 14
(2) PERS-91 ltr dtd 5 May 14 w/enclosure
(3) PERS-80 memo dtd 13 May 14
(4) Counsel’s undtd ltr
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 to show he was offered continuation to a
date that allows him the opportunity to gain eligibility for
Reserve retired pay. He further requested removing his failures
of selection by the Fiscal Year {FY) 04 through 07 Reserve Line
Commander Selection Boards (he actuaily failed of selection FY
04 through 09}, correcting his record to reflect either
reconstructed fitness reports for 2001 to 2003 or a memorandum
directing that future promotion boards ignore the absent fitness
reports from that period, and granting him a spécial selection
board (SSB) for promotion to commander.
2. The Board, consisting of Messrs. Hicks, Spooner and Swarens,
reviewed Petitioner's allegations of error and injustice on
21 August 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. In Petitioner's previous case, docket number 09169-12,
his record was corrected to show that on 31 January 2013, he was
appointed a lieutenant commander, designator 1635, in the Navy
Reserve, with a date of rank appropriate in light of his break
in service (he was discharged from the Navy Reserve on
1 November 2008) and further corrected to show he was offered
continuation until his 24th year of commissioned service (to
expire 1 February 2017). His request for SSB consideration was
denied, as the unspecified missing fitness reports on which he
based his request were still missing, so he could not be
considered on the basis of a complete record.
ec. In enclosure (2), PERS-91, the Navy Personnel Command
(NPC) office with cognizance over Petitioner's request for
continuation, has commented to the effect his request has merit
and warrants favorable action, specifically, changing the date
of his reappointment from 31 January 2013 to 16 December 2013,
adjusting his lieutenant commander date of rank accordingly from
31 January 2013, and showing he was offered continuation until
1 January 2022 (when he would have 24 years of commissioned
service), rather than 1 February 2017.
ad. In enclosure (3), PERS-80, the NPC office with cognizance
over promotions, commented to the effect that Petitioner's
remaining requests should be denied, because it was his
responsibility to review his record ahead of promotion board
consideration, he could have submitted a letter to NPC
explaining why any missing fitness report could not be obtained,
he failed to complete these steps and his complete record was
considered by the promotion boards.
€. Enclosure (4) is Petitioner's counsel’s reply to the NPC
advisory opinions, in which he details the relief Petitioner
seeks.
f. Petitioner’s record does reflect active duty fitness
reports for 2001 to 2003, the period during which he asserts he
was missing such fitness reports. Copies of his active duty
fitness reports for 24 April 2000 to 6 April 2001, 9 April to 28
September 2001, 4 to 25 October 2002 and 28 October 2002 to 20
August 2003 are at Tab A.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosure (2), the Board
finds an injustice warranting the partial relief proposed by
PERS-91. Since Petitioner’s record does include active duty
fitness reports for the period during which he asserts he was
missing such reports, the Board finds his remaining requests
should be denied. In view of the above, the Board directs the
‘following limited corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that
on 16 December 2013, rather than 31 January 2013, he was
appointed a lieutenant commander, designator 1635, in the Navy
Reserve, with a date of rank adjusted from 31 January 2013 to a
date of rank appropriate in light of his adjusted break in
service.
b. That his record be corrected further to show that he was
offered continuation until his 24th year of commissioned service
to expire on 1 January 2022, rather than 1 February 2017..
¢. That any material or entries inconsistent with or
relating to the Board's recommendation be corrected, removed or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.
d. 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.
e. That the remainder of Petitioner’s request be denied.
4. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Reguiations, Section 723.6(c)) 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.
Pourthan ¢, CrPr
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
Wet ek QD Ce
ROBERT D.~-ZSALMAN
Acting Executive Director
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