DEPARTMENT OFTHE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
	 	2 NAVY ANNEX
		WASHINGTON DC 20370-5100

LCC
Docket No. 1349-06
11 Jan 07

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 Usc 1552.

A three-member panel of the Board for correction of Naval Records, sitting in executive session, considered your application on 9 January 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by NPC memorandum 1920, Ser 4834/031, 21 Jun 06 and NPC letter, 5420 POOJ6/1l3, 19 October 2006, a copy of each is attached. A copy of each advisory was furnished to you prior to the case being presented to the Board.

After careful and conscientious consideration of the entire record, a majority of the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is also important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

sincerely,

ROBERT DLIZSALMAN
Acting Executive Director
Enclosures

										   1920
Ser 4834/031
21Jun06
MEMORANDUM

From:	Navy Personnel Command, PERS-4834E
To:	Executive Director, Board for Corrections of Naval Records
Via: Assistant for BCNR Matters, PERS-OOZCE

Subj:	REQUEST FOR CO~ENTS AND RECO~ENDATION IN THE CASE OF

	Ref:	(a)	PERS OOZCB Memo 5420 Pers-31C of 20 Mar 06
		(b)	BUPERSINST 1430.16E

1. In response to reference (a) and additional information requested by~. the following information is provided:

a.	July was frocked to E7 Sep 00 and promoted on 
16 Aug 01. Per reference (b) Members who do not meet minimum time in rate (3 years) and time in service (16 years) at the time they receive their temporary commission will be advanced on 1 July of the year in which time in rate and time in service are met. 
•	met both requirements Aug 04. His advancement to E8 would not have taken effect until 01 Jul 04. NAVPERS 1070/613 incorrectly has 01 Jul 03 and thus is invalid.

b. 	 appointment to E8 was not effected by his
•	temporary appointment as an officer. His advancement was effected by his misconduct and administrative removal of his temporary commission.  enlistment contract expired Jun 03. He was authorized a conditional reenlistment on 1 Aug 05 in pay-grade E7 to allow for him to reach retirement eligibility in Dec 06.

2.	I may be reached at Comm. (901)874-2090 or DSN 882-2090

Assistant, Officer Performance and Separations Section

DEPARTMENT OFTHE NAVY
NAVY PERSONNEL COMMAND
				  	5720 INTEGRITY DRIVE
                                                                MILLINGTON TN 38055-0000	 

	5420
			    POOJ6/ 113
	       19 Oct 2006

From:	Office of Legal Counsel (Pers-OOJ1)
To:	Executive Director, Board for Correction for Naval Records

Via:	Assistant for BCNR Matters, Pers-31C

Subj:	REQUEST FOR COMMENTS AND

Ref:	(a) Co, USS KEARSARGE (LHD 3) ltr 1611 Ser OlL/005 of 7 Jan 04 w/end
(b)	Board of Inquiry Findings dated 19 May 05
(c)	BUPERSINST 1430.16E

End:	(1) BCNR File with memo dtd 23 Aug 06

1.	This responds to your request (enclosure (1)) for comments and recommendation on subject Board for Correction of Naval Records (BCNR) petition. I have reviewed enclosure (1) and recommend no relief based on matters addressed below.

2.	 was advanced 16 Aug 01 as a CPO Selectee from the FY-01 E-7 Active Selection Board. . was frocked to E—7 in Sep 2000.

3.	Reference (a) reported then NJP of 19 Dec 03 for fraternizing with a female second class petty officer, not his wife.

4.	As set forth in reference a Board of Inquiry, by a 3-
0 vote, recommended then be retained in the Naval service. , the Board further recommended revocation of then temporary commission and his subsequent reenlistment for the minimum time required for him to attain retirement at his highest held enlisted paygrade (E-7).

5.	According to reference (C), Members whose permanent. enlisted rate is E-7 or E-8 on the date of appointment to temporary officer status may be advanced to E-8 or E-9, respectively, concurrent with the temporary officer requirement, provided they meet the following requirements:

(1)	3 years TIR in present enlisted rate when computed to 1 September of the year appointed, and (2) appropriate TAFMS requirements (16 years for E-8 and 19 years for E-9) prior to 1 October of the year appointed. Members who do not meet minimum TIR and TAFMS requirements in the year appointed to

	Subj:	REQUEST FOR COMMENT AND RECOMMENDATION CASE OF

temporary officer status will be advanced on 1 July of the year in which TIR and TAFMS requirements are met. The TIR date is 1 July of the year in which the advancement to paygrade E-8/E-9 is effected, whether that date is before or after the effective date of appointment. All service in a dual officer/enlisted status is creditable for TIR in the member’s permanent enlisted rate. Members advanced under these procedures must be serving, in temporary officer status on the date enlisted advancement is effected.

6. Accordingly, met both requirements in Aug 04, and his advancement to E—8 would have been effective 1 Jul 04. NAVPERS 1070/613 incorrectly has 1 July 03 as ~ E8 advancement date, and is therefore invalid.

7.	In conclusion, recommend no relief be granted based on circumstances as set forth above.

8.	Please call me at DSN 882-3162 or (901) 874—3162 if you have any questions.

LT, JAGC, USNR
Assistant Legal Counsel

Attorney-Client Communication and/or Work Product

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