DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 381-18 JAN 28 2019 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. 1552 (b) BUPERSINST 1610.10D (c) OPNAVINST 1420.1B (d) BUPERSINST 1070.27B (e) MILPERSMAN 1070-080 (f) MILPERSMAN 1070-150 (g) U.S. Navy Regulations (1990), Article 1122 Encl: (1) DD Form 149 (2) CO, RLSO 5211 SER/001 ltr of 9 Nov 15 (3) Evaluation & Counseling Record for the reporting period 16 Sep 13 to 15 Sep 14 (Unsigned) (4) Chief Eval Supplemental Report ltr of 17 Apr 15 (5) Evaluation & Counseling Record for the reporting period 16 Sep 13 to 15 Sep 14 (Signed 7 Nov 14) (6) NPC memo 1610 PERS-32 of 19 Jun 18 (7) Petitioner' s rebuttal of 21 Aug 18 1. Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Navy, filed enclosure (1) with this Board, requesting his naval record be corrected by removing an Evaluation and Counseling Record ("Eval") for the reporting period 16 September 2013 to 15 September 2014, and replacing it; reinstating his appointment to limited-duty officer (LDO) effective 1 December 2014, with backdated pay; reinstating his Navy Enlisted Classification (NEC) of 3389 and repayment of the related bonus that was partially recouped; and removing from his OMPF the request from the Commanding Officer (CO), Region Legal Service Office (RLSO) ( ), for a copy of Petitioner' s personnel record for use in a then-pending court-martial that was ultimately dismissed. 2. The Board, consisting of Ms. , Ms. , and Ms. , reviewed Petitioner's allegations of error and injustice on 29 August 2018 and, pursuant to its regulations, determined that partial corrective action should be taken. However, notwithstanding the Board's conclusion, the Executive Director firmly believes that Petitioner' s claim warrants additional relief beyond that recommended by the Board. Documentary material considered by the Board consisted ofthe enclosures, relevant portions of Petitioner 's naval records, and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion (AO) provided by Navy Personnel Command (PERS-32) and Petitioner's rebuttal statement. 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. Petitioner was selected by the FY-14 Active-Duty LDO In-Service Procurement Board for designator 6404 with a projected commissioning date of 1 December 2014. c. On 3 February 2014, Petitioner was disqualified from nuclear duty pending an investigation into alleged staff qualification cheating at Naval Nuclear Power Training Unit (NPTU) , . Consequently, his NEC-3389-was removed. Later, on 9 November 2015, Petitioner was notified that, because of his NEC removal, a portion of his Enlisted Supervisor Retention Pay (ESRP) would be recouped. d. On 4 February 2014, an investigation was convened to inquire into the facts and circumstances surrounding the alleged staff cheating. On 20 May 2014, Navy Personnel Command (NPC) notified Petitioner that his appointment to LDO was held in abeyance pending the outcome of the investigation. e. The investigating officer (I0) concluded that Petitioner was complicit in the cheating scheme by divulging privileged examination information to prospective examinees and that he violated the Uniform Code of Military Justice (UCMJ), Article 107 (false official statement). The IO recommended that disciplinary and administrative action be taken against Petitioner. f. On 3 August 2015, charges were preferred against Petitioner based on the IO's findings, and, on 21 September 2015, the charges were referred to a special court-martial. Enclosure (2) is a letter from the CO, RLSO , requesting from NPC Petitioner's complete permanent personnel records for use in the then-pending court-martial proceedings. On 4 February 2016, however, the charges were withdrawn and dismissed. Petitioner asserts that because the court-martial was dismissed, any reference to it in his records is in error or unjust. g. On 23 May 2016, the CO, NPTU, , per reference (c), requested that Petitioner's recommendation for appointment to LDO be rescinded due to the CO's loss of confidence in Petitioner's ability to serve as a commissioned officer. ln response, Petitioner maintained his innocence and requested appointment to LDO. h. Petitioner was issued enclosure (3), his Eval for the reporting period 16 September 2013 to 15 September 2014, which was entered into his OMPF without his signature. Petitioner' s Reporting Senior (RS) later submitted for inclusion in Petitioner's OMPF enclosures (4) and (5), a supplemental report and a duplicate Eval for the same reporting period that was signed by Petitioner. Petitioner implicitly contends that the unsigned Eval at enclosure (3) is duplicative and the supplemental letter at enclosure (4) is unnecessary, and he requested that they both be removed from his OMPF. i. In enclosure (6), an AO regarding Petitioner' s request to remove the supplemental report and duplicate Eval from his OMPF, PERS-32 determined that, per reference (b), supplemental material does not replace an original report in a member's OMPF, nor does it change the information on the member's Performance Summary Record; instead, it only supplements the original report. Further, Petitioner's RS properly submitted a letter-supplement and a revised Eval to correct the original report. The AO recommended that Petitioner's record remain unchanged because reference (b) does not require removal of the original Eval. j. Petitioner contends that the CO' s loss of confidence based on the command investigation's findings was unwarranted because the statements of witnesses were not reliable due to the IO's allegedly coercive questioning. Petitioner asserts that such evidence is improper "unless an accused has the opportunity to cross examine the witnesses and investigators at a court-martial." Further, he asserts that a loss of confidence based on such unreliable evidence is unreasonable.In his rebuttal at enclosure (7), Petitioner asserts that reference (b) sets forth the proper procedures to follow when a member does not sign a fitness report, and that those procedures were not followed in his case. Petitioner contends further that, although the AO acknowledged that Petitioner did not sign the contested Eval, the opinion did not examine the issue. He concludes that, because the regulation was not followed, the contested Eval must be removed. BOARD CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error and injustice warranting partial relief the Board determined that the contested Eval at enclosure (3) was not processed in accordance with reference (b), and its inclusion in Petitioner's OMPF is therefore in error and unjust. Accordingly, due to the inclusion of the correct Eval at enclosure (5), the supplemental letter at enclosure (4) is also unnecessary and unjust. The Board concluded that the contested Eval at enclosure (3) and supplemental letter at enclosure (4) shall be removed from Petitioner' s OMPF. Regarding Petitioner's request to remove enclosure (2) from his OMPF, the Board noted that Petitioner's records were in fact requested for the purpose of court-martial proceedings. Although the charges referred were ultimately dismissed, the Board concluded that there is no error or injustice with the contested letter remaining in Petitioner's OMPF. Regarding Petitioner's request for reinstatement to LDO, with backdated pay, and reinstatement of the NEC 3389 and repayment of the partially-recouped related bonus, the Board concluded that these requests are without merit. Specifically, the Board noted that the recommendation for Petitioner's appointment to LDO was initially held in abeyance pending an investigation that may have yielded information that would disqualify him for appointment. Due to the ongoing investigation, his NEC 3389 was removed and because of his NEC removal, a portion of his ESRP was recouped. Ultimately, upon conclusion of the investigation, and after consideration of Petitioner's request for appointment to LDO, his CO recommended that his selection to LDO be rescinded due to loss of confidence in his ability to serve as a commissioned officer. The Commander, NPC (CNPC) concurred with the CO's recommendation and rescinded Petitioner's selection to LDO. The Board determined that the Petitioner's CO was within his discretionary authority to recommend rescinding the LDO selection, that the recommendation sufficiently supported, and hat it was carefully considered and approved by the CNPC. Further, Petitioner did not provide sufficient evidence to show that his LDO selection was arbitrarily rescinded. In this regard, the Petitioner did not sufficiently demonstrate that the witnesses' statements were not reliable because their alleged internal inconsistency, alleged lack of support, and the IO' s allegedly coercive questioning, and there is no authority for his unsupported contention that the evidence upon which adverse action was based was improper because he did not have "the opportunity to cross examine the witnesses and investigators at a court-martial." BOARD RECOMMENDATlON In view of the above the Board directs the following corrective action. Petitioner's naval record be corrected by removing the Eval at enclosure (3). Petitioner's naval record be corrected by removing the supplemental letter dated 17 April 2015 at enclosure (4). No further relief be granted. EXECUTIVE DIRECTOR'S CONCLUSION Despite the Board' s conclusion regarding Petitioner's request to remove enclosure (2), I firmly believe it is in error and unjust for the letter to remain in Petitioner's OMPF. ln this regard, per references (d) through (f), retention in Petitioner's OMPF of the letter--which is merely a request, without elaboration, from a RLSO CO for a copy of Petitioner' s complete personnel records for use in a then-pending court-martial that was ultimately dismissed--is not authorized. Such a letter is not among those documents expressly approved for submission and retention in the OMPF. In any event, enclosure (2) does not contain "information essential to personnel administration," as required by reference (d), and, while the letter is adverse, Petitioner has not been afforded an opportunity to submit a written statement, as required by references (d), (f), and (g). It is therefore in error for enclosure (2) to remain in Petitioner' s OMPF. Regarding Petitioner' s request to remove enclosures (3) and (4) from his OMPF, I concur with the Board's conclusion. Regarding Petitioner's request for reinstatement to LDO, with backdated pay, and reinstatement of the NEC 3389 and the related bonus recoupment, I concur with the Board' s conclusion. EXECUTIVE DIRECTOR'S RECOMMENDATION In view of the above I direct the following corrective action. Petitioner's naval record be corrected by removing the request for seal and signature records at enclosure (2). Petitioner's naval record be corrected by removing the Eval at enclosure (3). Petitioner's naval record be corrected by removing the supplemental letter dated 17 April 2015 at enclosure (4). No further relief be granted. 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. 5. The foregoing action of the Board is submitted for your review and action. Executive Director Reviewed and approved the Executive Director's Recommendation