DEPARTMENT OF THE NAVY
		BOARD FOR CORRECTION OF NAVAL RECORDS
		               2NAVYANNEX
		                               WASHINGTON DC 20370-5100

HD:hd
Docket No. 00809-06
                                           21	September	2006

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

		Subj: REVIEW OF NAVAL

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

Encl:	(1) DD Form 149 dtd 13 Jan 06 w/attachments
(2)	PERS-311 memo dtd 21 Apr 06
(3)	Subject’s naval record

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 removing all reference to the set aside nonjudicial punishment (NJP) awarded him on 29 October 2002, including the comment, in the enlisted performance evaluation report for 16 November 2001 to 15 November 2002 (copy at Tab A), to the effect he received NJP for misuse of a government credit card. It Is noted that Petitioner’s record reflects no reference, other than that in the performance evaluation report, to the NJP.

2.	The Board, consisting of Messrs. Chapman, Schultz and Spooner, reviewed Petitioner’s allegations of error and injustice on 21 September 2006, 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.

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.	Block 43 (“Comments on Performance”) of Petitioner’s enlisted performance evaluation report for 16 November 2001 to 15 November 2002 includes, at the end, the following contested bullet:

Awarded NJP 29 Oct 02 for Violation of Article 92 {Uniform Code of Military Justice]. 5 Specifications regarding government credit card use.

d.	By letter of 28 October 2005, a copy of which is in enclosure 

(1), Petitioner’s then current commanding officer, at a different command from that which had imposed the NJP, set it aside. The reason given was not a determination that Petitioner had not committed the misconduct for which he was punished, but that he had performed well since the NJP, and that the NJP should not be allowed to continue to harm his career.

e.	In correspondence attached as enclosure (2) , PERS-3ll, the Navy Personnel Command office having cognizance over performance evaluations, has commented to the effect that Petitioner’s request should be denied. They noted that the set aside action took place about three years after the report in question was submitted; that a performance evaluation is “unique to the period being evaluated”; that Petitioner chose not to make a statement to the report; that the reporting senior is charged with determining what material will be included in a performance evaluation report; that the comments and marks are at the reporting senior’s discretion; and that evaluating a member’s performance and making recommendations about suitability for appointment and assignments are the reporting senior’s responsibility. They stated that the pertinent report was accurately prepared and submitted in accordance with applicable guidance as to when a reporting senior must document details of misconduct in a performance evaluation report.  Finally, they concluded that Petitioner does not prove the report of concern to be unjust or in error.

CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the contents of enclosure (2), the Board finds the existence of an error and injustice warranting partial relief, specifically, removal of “Awarded NJP 29 Oct 02 for.” Since the set aside action was not based on a finding that Petitioner did not commit misconduct, the Board finds the reference to the misconduct for which he was punished should stand. However, because the NJP was lawfully set aside by the duly authorized action of Petitioner’s then current commanding officer, the Board finds the express reference to the NJP should be removed so that his record will not reveal .he received NJP.

In view of the above, the Board recommends the following limited corrective action:

RECOMMENDATION:

a.	That Petitioner’s naval record be corrected by modifying as follows block 43 of the enlisted performance evaluation report for 16 November 2001 to 15 November 2002, dated 18 November2002 and signed by Commander, USN:

Remove from the last bullet “Awarded NJP 29 Oct 02 for, “ so that the bullet as amended will read as follows: “- Violation of Art 92. 5 Specifications regarding government credit card use.”

b.	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.

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.

d.	That the remainder of Petitioner’s request be denied.

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.

								W. DEAN PFEIFFER
	Executive Director

Reviewed and approved:

Robert T. Cali
Assistant General Counsel
(Manpower and Reserve Affair)