Docket No: 406-20 
Ref: Signature Date 
 
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 
     
Encl: (1) DD Form 149 w/attachments  
  (2) Fitness report for the reporting period 16 Nov 18 to 2 Oct 19 
  (3) Cmdr, NETC ltr of 13 Dec 19 
  (4) Fitness report for the reporting period 16 Nov 18 to 19 Dec 19 
  (5) NPC ltr 1610 PERS-32 of 18 Dec 19 
    
1.  Pursuant to the provisions of the reference, Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his fitness report for the reporting period 16 November 2018 to 2 October 2019. 
 
2.  The Board, consisting of  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 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 that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.  The Board made the following findings: 
 
     a.  On 2 October 2019, Petitioner received non-judicial punishment (NJP) for violating Article 92 and Article 107, Uniform Code of Military Justice (UCMJ).   
 
     b.  Petitioner was issued a Special Regular fitness report for the reporting period 16 November 2018 to 2 October 2019 documenting his NJP, enclosure (2). 
 
     c.  On 13 December 2019, the Commander,  () reviewed Petitioner’s appeal and opined that the timeliness it took for his command to process his NJP appears to be retaliatory in nature.  The  determined that the results of Petitioner’s NJP are set aside and appropriate corrections will be made to his service record, enclosure (3). 
 
     d.  Petitioner was issued a Promotion/Frocking Regular fitness report for the reporting period 16 November 2018 to 16 December 2019, enclosure (4).  
 
     e.  Petitioner contends that the contested fitness report should be removed based on the results of his non-judicial punishment (NJP) appeal and that a Regular Frocked/Promotion evaluation was submitted in place of the NJP evaluation report.  
 
     f.  The advisory opinion (AO), enclosure (5) furnished by the Navy Personnel Command (PERS-32) noted that BUPERS-00J is the authority to direct action to their office for NJP set-asides and BUPERS 00J confirmed that they did not receive the set-aside request from the command.  The AO recommended that the command submit the set aside documents to BUPERS-00J. 
 
CONCLUSION 
  
Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting corrective action.  In this regard, the Board noted the correspondence furnished by  setting aside Petitioner’s NJP.  The Board also noted that Petitioner was promoted/frocked to E-7 and that he received a Promotion/Frocking fitness report covering the same period as the contested fitness report. The Board determined that Petitioner’s NJP was set-aside by the appropriate convening authority according to the Manual for Courts-Martial (2019 edition).  Accordingly, the Board concluded that Petitioner’s contested fitness report shall be removed. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by removing his fitness report for the reporting period 16 November 2018 to 2 October 2019, enclosure (2). 
 
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.