DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE too!
ARLINGTON, VA 22204-2490
TAL
Docket No: 63@8-13
13 February 2015
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD Oi osx, XXX- Xx iy
Ref: ‘(a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary with attachments
(3) Subject’s naval record
1. Pursuant to the provisions of reference (a), Petitioner, an
officer in the Navy, filed enclosure (1) with this Board
requesting that his naval record be corrected by removing any and
all derogatory material referencing the imposition of nonjudicial
punishment (NJP) on 19 October 2011, for making a false official
statement, a Punitive Letter of Reprimand (LOR) dated
23 October 2011, fitness reports (FITREP) for the periods of 11
March 2011 to 31 January 2012 and 1 February 2012 to 11 May 2012,
the Detachment for Cause (DFC) dated 27 November 2011, and the
Removal of Permanent Promotion to Lieutenant Commander dated
22 January 2014. This request includes, but is not limited to
any and all other references surrounding the circumstances of the
NJP as reflected in his Official Military Personnel File (OMPF).
2. The Board, consisting of Mr. Bey, Ms. White-Olson, and
Mr. Grover, reviewed Petitioner's allegations of error and
injustice on 28 January 2015 and, pursuant to its regulations,
and 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. In addition, the Board considered the advisory opinion
(AO) furnished by the Office of the Judge Advocate General
(OJAG), Criminal Law Division (Code 20) dated 13 November 2014, a
copy of which is attached with enclosure (2).
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.
TAL
Docket No: 6368-13
b. Enclosure (1) was filed ina timely manner.
c. On 5 October 2011, Petitioner’s squadron conducted an
initial Preliminary Inquiry (PI) into possible misuse of auto
throttles. Petitioner initially denied flying on auto throttles,
then later admitted during this same questioning to flying on
auto throttles inappropriately. The squadron’s PI officer
recommended no NJP. On 13 October 2011, the Executive Officer
(XO) Strike Fighter Squadron FOURTEEN (VFA-14) was appointed to
conduct an additional PI and recommended that NJP should be
imposed. On 19 October 2011, Commander Carrier Air Wing NINE
(CVW-9) awarded NUP to Petitioner for making a false official
statement. The punishment imposed was a punitive LOR.
Petitioner did appeal the NUP, but the appeal was denied.
d. As a result of the NUP, on 4 June 2012, the Petitioner
was the subject of a Detached for Cause (DFC) administrative
action by reason of misconduct and as such, he was required to
show cause for retention. On 27 September 2012, a BOI, convened
as a result of the DFC, found that separation was not warranted.
Petitioner was retained.
e. ‘Petitioner alleged that his rights were violated during
both the NUP and appellate process. A letter from Petitioner's
commanding officer in support of this allegation, states in part,
that it was inappropriate behavior by the NJP and appeal
authorities (CVW-9 and CSG-3), when upon review of the initial
PI, ordered an additional PI then subsequently directed the
commanding officer to impose NJP, and when the commanding officer
refused to do so, CVW-9 assumed authority and imposed NUP.
f£. An advisory opinion from OJAG, Code 20 states, in part,
that despite the lack of sufficient facts to determine procedural
violations, equitable authority and discretion should be used
upon reviewing the allegations of interference by superior
commanders and Petitioner's otherwise exemplary service record.
It further infers that such interference by superior commanders
give the appearance of possible unlawful command influence and
can be determined as probable material error or injustice
pursuant to 10 U.S.C 1552.
TAL
Docket No: 6368-13
MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the advisory opinion from OJAG, the
Majority finds the existence of an error and injustice based on
the appearance of possible unlawful command influence, which
warrants corrective action. In this regard, the Board concludes
that the Petitioner's request warrants favorable action.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
MAJORITY RECOMMENDATION:
a. That Petitioner's naval record be corrected by totally
obliterating or removing the 19 October 2011 NUP, the punitive
LOR dated 23 October 2011, the fitness reports for the periods of
11 March 2011 to 31 January 2012 and 1 February 2012 to 11 May
2012, the Detachment for Cause (DFC) dated 27 November 2011, and
the Removal of Permanent Promotion to Lieutenant Commander dated
22 January 2014.
b. That any and all materials 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 materials be added to the record in the future.
c. 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.
ad. That no further relief be granted.
MINORITY CONCLUSION:
Ms. White-Olson disagrees with the majority and concludes that
Petitioner's request does not warrant favorable action.
MINORITY RECOMMENDATION:
That Petitioner’s request be denied.
TAL
Docket No: 6368-13
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.
T. J. Reed
Recorder
5. The foregoing action of the Board is submitted for your
review and action.
ROBERT J. O’ NEILL
Executive Director
MAJORITY REPORT APPROVED:
eine
ROBERT L. WOODS
Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000
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