BOARD FOR CORRECTION OF NAVAL RECORDS
	2NAVYANNEX	JSR
	WASHINGTON DC 20370-5100	Docket No.9316—07
		10 April 2008

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

	Subj:	REVIEW OF NAVAL RECORD
	
	Ref:	(a) 10 U.S.C. 1552

End:	(1) DD Form 149 dtd 5 Oct 07 w/attachments and counsel ltr dtd 6 Mar 08 w/enclosure
(2)	PERS-3l1 memo dtd 14 Dec 07
(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 the fitness report for 17 March to 5 June 2005 (copy at Tab A) and all three endorsements on the report dated 5 April 2005 of his Field Naval Aviator Evaluation Board (FNAEB), dated 19 April, 1 June and 5 July 2005, respectively (copies at Tab B), together with enclosures (58) through (61) summarized in and attached to the first endorsement. He also requested that his flight status be changed from B(l) (termination of flight status with retention of right to wear insignia) to A(4) (continuation in a flight status in a probationary flight status). The Board did not consider Petitioner’s request to change his flight status, as it is the Board’s policy not to entertain such requests.

2.	The Board, consisting of Messrs. W. Hicks, Spooner and Swarens, reviewed Petitioner’s allegations of error and injustice on 10 April 2008, 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.	On 16 February 2005 Petitioner, who was the pilot of a helicopter, attempted a “scoop out” maneuver that resulted in a Class A mishap. A FNAEB was conducted, resulting in a recommendation of A(4) status. A copy of the report of the FNAEB with enclosures is at enclosure (1). The first of the three contested endorsements on the FNAEB report, from Commander (CDR) C---, the Commanding Officer (CO) of Petitioner’s squadron, HC-4, disagreed with the FNAEB and recommended B(l) status. The second contested endorsement, from Captain (CAPT) B---, the Commander, Helicopter Sea Combat Wing, U.S. Atlantic Fleet, concurred with CDR C---. The third contested endorsement, from Admiral (ADM) S---, the Commander, Naval Air Force, U.S. Atlantic Fleet, the type commander who was the final deciding authority regarding Petitioner’s flight status, concurred that B(1) was warranted.

c.	Petitioner’s counsel objects that after the October/November 2004 HC-4 STAN (standardization) board had deemed the “scoop out” maneuver “benign,” CDR 5----, the executive officer (XO), directed Lieutenant (LT) K---, the NATOPS (Naval Air Training and Operations Standardization) Instructor (NI), not to include the discussion of the “scoop out” maneuver in the minutes (LT K--- statement at enclosure (35) of FNAEB report). He suggests this caused CDR A---, the HC4 CO at the time of the mishap, to be wrongfully blamed for it.

d.	Counsel further objects that the report of an informal inspection after the mishap contained an inaccurate quotation attributed to Petitioner’s department head at HC-4, Lieutenant Commander (LCDR) M---, that “[Petitioner] was a below average officer and an [sic] failed aviator that the squadron missed.” LCDR M--- denies having said that (statement at enclosure (34) of FNAEB report). Counsel notes that this inaccurate quotation mirrors “failing aviator” language appearing in both the first and second contested endorsements, suggesting it could have influenced the endorsers concerned to use that language.

e.	Counsel contends that ADM 5--- showed bias against Petitioner and exerted undue command influence on the FNAEB proceedings, changing the convening authority/first endorser, by his early relief of CDR A---, who had had experience with Petitioner, and replacing him temporarily with CDR C---, who had never served with HC-4 previously.

f.	Counsel contends CDR C--- also showed bias and exerted undue command influence on the proceedings by sending Petitioner on temporary duty away from HC-4 during the FNAEB, as he unjustifiably felt Petitioner’s “personality would be a divisive factor in the wardroom while the post mishap process was going on” (CDR S--- statement at enclosure (31) of FNAEB report); and he ordered HC-4 officers not to have contact with Petitioner during the proceedings (counsel cites CDR 5--- statement, but it mentions no such order) . Counsel maintains these actions by CDR C--- violated Petitioner’s right to prepare for the FNAEB. He further contends that CDR C--- acted unfairly and unethically and exerted undue command influence on present and former HC-4 members who were witnesses or potential witnesses at the FNAEB by conducting his own investigation during the proceedings.

g.	Further concerning CDR C---, counsel objects that he unfairly prepared enclosures (58) through (6-1) to his first endorsement, documents that were not seen by the FNAEB, and attached them to the FNAEB report in violation of Petitioner’s right to be present at all open meetings of the FNAEB. Counsel says Petitioner has never seen these enclosures. Commander Naval Air Force Instruction 5420.1, enclosure (1), paragraph 22 states that copies of endorsements and enclosures to the report of the FNAEB are to be provided to the respondent.

h.	Counsel alleges that CDR C---’s first endorsement contains false statements that Petitioner was removed from the flight schedule for showing up with alcohol on his breath, that while Petitioner was away from the squadron CDR C--- “made many observations concerning [Petitioner’s] . . . flying abilities” (counsel notes Petitioner was not allowed to fly during this time), that Petitioner was observed as being impaired by alcohol and that he has a “serious drinking problem” (the DAPA (Drug and Alcohol Program Advisor) made no such finding).

I.	Counsel objects that CDR C--- characterized Petitioner as a “failing” aviator, as it is untrue and that term is out of date, the current term being “high risk” aviator. He asserts the characteristics of a “best” pilot “high risk” aviator do not include professional deficiencies, over-aggressive personality or alcohol consumption, all of which CDR C--- cited. He further objects that CDR C--- had no firsthand credible information to justify his allegations against Petitioner.

j.	Concerning the second endorsement, counsel notes that CAPT B-- considered the objectionable enclosures CDR C--- had added, which once again violated Petitioner’s rights. Counsel asserts that CAPT B--- had prepared his recommendation before he interviewed Petitioner. Counsel objects that CAPT B---, like CDR C---, characterized Petitioner as a “failing” aviator. He asserts that abuse of alcohol, fraternizing with junior enlisted, a pattern of recklessness, conflict with the chain of command, “macho posturing” and publicly admonishing maintenance personnel, all of which CAPT B--- cited, are not characteristics of a “best” pilot “high risk” aviator. He maintains the alcohol and fraternization allegations are unsupported. Specifically regarding the charge of publicly admonishing maintenance personnel, he points out that Petitioner lost his closest friend in HC-4’s second of four Class A mishaps in three years before his own mishap (“EVENTS” section of counsel’s brief dated 9 February 2006 at enclosure (1) calls Petitioner’s mishap “number four,” but everywhere else counsel indicates it was the fifth)

k.	Counsel objects to CAPT B---’s unjust insinuation that the FNAEB’s being an administrative body that does not have to follow rules of evidence somehow makes it permissible that CDR C--- conducted an independent investigation and attached enclosures resulting from it.

1.	Counsel charges that CAPT B--- did not review the FNAEB report in preparing his second endorsement, given his comment that he would expect Petitioner, when faced with ambiguous guidance regarding execution of a maneuver, to seek out clarification. Counsel feels this indicates he expected Petitioner to recognize facts not yet determined. He argues that the XO and NI also share blame for the mishap; and that it would not even have occurred, had proper written procedures for the maneuver been available.

m.	Concerning CAPT B---’s rejection of the FNAEB finding that the command climate contributed to the mishap, counsel submits this evidences his concern that his oversight of a squadron that had experienced multiple Class A mishaps might be questioned.

n.	Finally, contrary to both CDR C---’s first endorsement and ADM S---’s third endorsement, counsel asserts Petitioner never told his copilot, LT L--- (statement at enclosure (27) of FNAEB report), to “sit on his hands” during the maneuver that resulted in the mishap. Petitioner’s statement (enclosure (26) of FNAEB report) does say he told LT L--- to “pretend he wasn’t a copilot and not to touch the controls during the maneuver.” Counsel explains that Petitioner, who was a bachelor, was protecting a “shipmate” with a wife and children.

o.	In correspondence attached as enclosure (2), the Navy Personnel Command office with cognizance over performance evaluations has commented to the effect that Petitioner’s request to correct his fitness report record has merit and warrants favorable action.

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosure (2), the Board finds the existence of an injustice warranting partial relief, specifically, removal of the contested fitness report.

The Board finds the contested endorsements, as well as the enclosures to the first endorsement, should stand. The Board is unable to find the endorsers had an inaccurate understanding of how dangerous the “scoop out” maneuver was. The Board is likewise unable to find CDR A--- was wrongfully relieved. The Board is not convinced the inaccurate quotation attributed to LCDR M--- caused the first and second endorsers to describe Petitioner as a “failing” aviator. The Board is unable to find these endorsers were wrong to use the concept of a “failing” aviator, nor can it find they were wrong to consider Petitioner’s personal and professional deficiencies to be factors in their recommendations. The Board is not convinced they were wrong in characterizing Petitioner as a “failing” aviator, or that any of their statements were false. The Board is unable to find either ADM 5--- or CDR C--- was biased against Petitioner, or that either officer attempted to influence the FNAEB against him or prejudice his ability to prepare for it. The Board notes, in this regard, that Petitioner is satisfied with the result of the FNAEB, which recommended the A(4) flight status he seeks. The Board finds nothing objectionable in CDR C---’s investigation or his attachment of enclosures to the FNAEB report. Concerning the assertion that Petitioner never saw the enclosures, the Board notes that counsel does not allege Petitioner made a request for these documents that was denied, and further notes that CDR C---’s endorsement, which he does not deny having received, gives the gist of the enclosures. Regarding the assertion that CAPT B--- had prepared his recommendation before interviewing Petitioner, the Board notes Petitioner had provided the statement at enclosure (26) of the FNAEB report. The Board is unable to find CAPT B--- did not review the FNAEB report in preparing his endorsement. The Board does not agree that Petitioner would have had to recognize facts not yet determined in order to see a need for clarification of

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 Regulations, 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.
	
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.

								W. DEAN PFEIFFER
Executive Director