From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF USNR, XXX-XX Ref: (a) Title 10 U.S.C. § 1552 (b) BUPERSINST 1610.10D (EVALMAN) Encl: (1) DD Form 149 (2) NOSC Reno Memo, subj: Administrative Separation Processing Notification, dtd 6 Sep 19 (3) NAVPERS 1616/26, Evaluation Report and Counseling Record (E1-E6), 20190316 – 20190929 (4) BUPERS Msg, subj: Admin Disch ICO [Petitioner], dtg 150741Z Nov 19 (5) NPC Memo, 1610 PERS-32, subj: [Petitioner], dtd 1 Oct 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that her naval record be corrected by removing her fitness report for the reporting period 16 March 2019 to 29 September 2019. 2. The Board reviewed Petitioner's allegations of error and injustice on 9 February 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s 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 the Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. By memorandum dated 6 September 2019, Petitioner was notified that she was being separated for misconduct by commission of a serious offense. Specifically, she was being separated for violation of a lawful order or regulation, in violation of Article 92, Uniform Code of Military Justice. See enclosure (2). c. On 28 September 2019, Petitioner was issued an adverse special evaluation report for the period 16 March 2019 to 29 September 2019. The adverse content of the evaluation report related to the misconduct for which Petitioner was processed for separation. Among the adverse content in the report, Block 43 included the following statement: “Member is being processed for ADSEP due to Misconduct – Commission of Serious Offense.” See enclosure (3). d. By message dated 15 November 2019, the separation authority directed that Petitioner be retained in the U.S. Navy Reserve (USNR), contrary to the recommendation of her command. See enclosure (4). e. Petitioner contends that the comments in the evaluation report were improper, not final, and inaccurate. Specifically, Petitioner refers to the sentence in block 43 referenced in paragraph 3c above. She asserts that her prior commanding officer wrote a letter requesting her administrative separation only after she had declined non-judicial punishment, retained counsel, and demanded trial by court-martial. She further asserts that she was never processed for administrative separation and was specifically retained in the USNR. Finally, she contends that she lost her rank of E-6 due to this evaluation report and was returned to the rank of E-5. See enclosure (1). f. By memorandum dated 1 October 2020, Naval Personnel Command (PERS-32) provided an advisory opinion (AO) for the Board’s consideration. The AO notes that reference (b) allows the reporting senior to submit a special report if needed to withdraw a grade advancement recommendation. Additionally, reference (b) allows reporting seniors to “include comments on misconduct whenever the facts are clearly established to the reporting senior’s satisfaction.” The AO also notes that Petitioner was, in fact, processed for administrative separation for the commission of a serious offense, contrary to Petitioner’s contention, and the fact that the separation authority decided to retain Petitioner does not invalidate the accuracy of this statement. Finally, the AO found no evidence that the reporting senior acted illegally or improperly, or that the subject evaluation report lacked rational support. Accordingly, the AO found no evidence to establish the existence of probable injustice concerning the evaluation report. CONCLUSION: Upon careful review and consideration of all the evidence of record, the Board found, contrary to the AO, an injustice that warrants partial relief. The Board substantially concurred with the AO that Petitioner’s reporting senior was within his authority to issue the special evaluation report to remove Petitioner’s advancement recommendation due to misconduct. It also agreed with the AO that Petitioner’s contention that she was never processed for administrative separation for commission of a serious offense to be inaccurate, as the action reflected in enclosure (4) reflects that she was so processed, although ultimately retained. Contrary to the AO, however, the Board found an injustice in the inclusion in block 43 of the sentence referenced in paragraph 3c above. Although this statement was accurate at the time the evaluation report was created, the subsequent decision of the separation authority to retain Petitioner renders this statement misleading to future readers. Accordingly, the Board found this statement to constitute an injustice warranting correction. Besides this statement, the Board found no other probable material error, substantive inaccuracy, or injustice in enclosure (3) warranting removal of the report as requested by Petitioner. RECOMMENDATION: In view of the above, the Board recommends that the following corrective action be taken on Petitioner’s naval service record: That the second to last sentence in block 43 of Petitioner’s evaluation report for the period 16 March 2019 to 29 September 2019, which states “Member is being processed for ADSEP due to Misconduct – Commission of Serious Offense,” be redacted. That no other changes be made to Petitioner’s record. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 2/25/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: Board Recommendation Approve (Partial Relief) Assistant General Counsel (M&RA)