From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) Title 10 U.S.C. § 1552 (b) BUPERSINST 1610.10D Encl: (1) DD Form 149 w/enclosures (2) Evaluation Report and Counseling Record for the reporting period of 16 September 2017 to 15 April 2018 (3) Administrative Remarks entry of 7 May 18 (4) BUPERS letter 1616 BUPERS-00B of 16 Nov 19 (5) Evaluation Report and Counseling Record for the reporting period of 29 March 2019 to 15 September 2019 signed 28 March 2019 (6) Evaluation Report and Counseling Record for the reporting period of 29 March 2019 to 15 September 2019 signed 23 January 2020 (7) NPC memo 1610 PERS-32 of 3 Mar 2020 (8) NPC memo 1430 PERS 8031 of 8 Apr 2020 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 removal of the adverse Evaluation Report and Counseling Record (Eval) dated 28 March 2019 and the Administrative Remarks (Page 13) entry removing the Commanding Officer’s (CO) recommendation for advancement. Petitioner further requests an Eval with “the correct rank” from for continuity, reinstatement of his rank to the date his “actual promotion date would have been,” and retroactive pay and allowances. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 5 March 2021, and pursuant to its regulations, determined the corrective action indicated below should be taken on the available evidence of record. 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, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Petitioner was issued enclosure (2), a special Eval for the reporting period 16 September 2017 to 15 April 2018 while assigned to . c. On 7 May 2018, Petitioner was issued enclosure (3), a Page 13 frocking him to Master Chief which allowed him to wear the uniform and insignia of the higher rate without entitlements or allowances of the frocked paygrade. d. On 15 February 2019, Petitioner’s command, , requested his detachment for cause (DFC). On 16 November 2019, the Deputy Chief of Naval Personnel (DCNP) disapproved the DFC request but allowed Petitioner’s reassignment to a different command by separate action. In enclosure (4), CO, was “reminded that in writing BMCS S’s evaluation report, you may comment on the events leading up to your request; however, the evaluation report may not contain comments that specifically label his departure as a DFC.” Further, DCNP directed delivery of enclosure (4) to Petitioner and stated that “neither the request for his DFC, nor this letter will be filed in his official personnel record.” e. On 19 February 2019, while awaiting DCNP’s decision on the command’s DFC request, Petitioner was assigned Temporary Additional Duty (TAD) to . f. Petitioner contends he received an adverse Eval dated 28 March 2019 for the reporting period 16 April 2018 to 28 March 2019 and a Page 13 removing his recommendation for advancement from CO, via his officer in charge. A review of Petitioner’s electronic service record (ESR) does not contain an Eval that covers the reporting period of 16 April 2018 to 28 March 2019 or the Page 13. g. Petitioner submitted enclosure (5), a periodic, concurrent Eval for the reporting period 29 March 2019 to 15 September 2019 while assigned to which indicates it was signed on 29 March 2019 but does not contain a signature in block 47. Petitioner contends this version of the Eval for the stated reporting period was the front page of the concurrent Eval coupled with the back page of the adverse evaluation. He contends enclosure (5) is a combination of two different Evals by two different COs which make it appear the NOSC CO submitted an adverse Eval. The submission contains the marking “Official Record” but a review of Petitioner’ ESR reflects that the ESR no longer contains enclosure (5). h. Petitioner contends the NOSC CO was submitting the correct concurrent Eval to replace enclosure (5). A review of Petitioner’s ESR provided enclosure (6), a periodic, concurrent Eval for the reporting period of 29 March 2019 to 15 September 2019 signed on 23 January 2020. i. Petitioner contends the state of his Evals will affect his career because he is eligible for the continuation board but “will not meet advancement board precepts with periods of undocumented performance.” j. The Advisory Opinion (AO) at enclosure (7), provides an opinion regarding enclosure (5), an Eval for the period of 29 March 2019 to 15 September 2019 and not the adverse Eval dated 28 March 2019 Petitioner contends said it would submit to cover the reporting period of 16 April 2018 to 28 March 2019. The AO’s review of enclosure (5) concluded it was “suspect of injustice.” The AO further commented that because enclosure (5), which was provided by Petitioner in enclosure (1), was no longer in Petitioner’s record, PERS 32 “cannot confirm the identity of the report.” The AO recommended Petitioner’s record remain unchanged pending Board determination but supported “either removing the fitness report and replacing with a memorandum or replacing with the fitness report provided in enclosure (1).” k. The AO at enclosure (8) states that, if the “BCNR Board approves the removal of the ‘Significant Problems’ Periodic/Concurrent fitness report from 19MAR29 to 19SEP15 and replaced it with the ‘Early Promote’ Periodic/Concurrent fitness report” Petitioner “will be eligible for advancement to E-9 effective 17 June 2019 with a Time in Rate of 1 July 2018.” CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error and injustice warranting corrective action. Based upon review of Petitioner’s ESR, the Board concluded enclosure (5) appears to have been removed and replaced with enclosure (6) as recommended by the AO at enclosure (7). A review of Petitioner’s ESR also revealed that the adverse Eval Petitioner anticipated would submit for the reporting period of 16 April 2018 to 28 March 2019 is NOT in his record. Further, the Board noted the ESR does not contain an Eval for this reporting period and Petitioner has, as he contends, “periods of undocumented performance” in his ESR which require correction. The Board also noted Petitioner’s TAD report date of 19 February 2019 but further noted the periodic/concurrent Eval at enclosure (6) began with 29 March 2019, presumably because the adverse Eval Petitioner was given, which is not in his record, reportedly ended on 28 March 2019. Relying on the AO at enclosure (8), the Board determined there was sufficient evidence that Petitioner should be eligible for advancement to E-9 based on the apparent removal of enclosure (5) and inclusion of enclosure (6). RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be verified to ensure the Eval at enclosure (5) has been removed. The Board further directs the beginning date of the reporting period of the Eval at enclosure (6) be changed to 19 February 2019 in accordance with Petitioner’s TAD report date to . With respect to the gap in Petitioner’s evaluations from 16 April 2018 to 18 February 2019, the date before his TAD start date, the Board directs PERS 32 ensure the appropriate corrective action is taken in the form of an Eval covering the reporting period or a memorandum of continuity. Petitioner’s naval record be verified to ensure the contested Page 13 entry removing the CO’s recommendation for advancement has been removed. Confirm Petitioner’s date of eligibility for advancement to E-9, and immediately advance Petitioner to E-9 and direct issuance of retroactive pay and allowances. The Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner’s records and make payment of any money that Petitioner may be entitled to. 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. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. 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. 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.