Docket No 5721-20

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj: REVIEW OF NAVAL RECORD ICO   
             
 
Ref:	(a) Title 10 U.S.C. § 1552  
	(b) BUPERSINST 1610.10D 
        (c) ASN (M&RA) memo of 4 Jun 19 “Order Convening the FY-20 Promotion Selection 
            Boards to Consider Chief Warrant Officers on the Active-Duty List of the Navy for  
            Permanent Promotion to the Grade of W-3, W-4, and W-5”  
        (d) NAVADMIN 304/18 
        (e) Title 10 U.S.C. § 628 
        (f) SECNAVINST 1402.1 
        (g) ASN (M&RA) memo of 28 Nov 17 “Delegation of Authority to the Board for Correction of Naval Records (BCNR) to Direct the Convening of a Special Selection Board (SSB), Supplemental All-Fully-Qualified Officers List (AFQOL), and Special AFQOL”  
 
Encl: (1) DD Form 149 w/enclosures 
      (2) Fitness Report and Counseling Record for the reporting period 1 October 2017 to 30 September 2018 
      (3) NPC memo PERS-80/0315 of 17 Sep 20 
      (4) AO rebuttal of 29 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 his naval record be corrected by promoting him to Chief Warrant Officer 3 (CWO3) and backdating the promotion date to his three year mark of 1 April 2020.   
                                           
2.  The Board, consisting of  and  reviewed Petitioner’s allegations of error and injustice on 28 May 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 failed to select for CWO3 during the Fiscal Year (FY) 2020 Active Duty Navy Chief Warrant Officer, W-3, W-4, and W-5 Promotion Selection Board.  He contends the failure was due to a missing fitness report (enclosure (2)) for the reporting period 1 October 2017 to 30 September 2018 that was not signed until 26 June 2019.  Petitioner contends the absence of this report, due to command error and despite his constant communication with the Executive Officer regarding the status, put him at a disadvantage and ultimately led to his failure of selection.  Review of enclosure (2) confirms Petitioner’s contention the report was not signed by the Reporting Senior until 24 June 2019 or by himself until 26 June 2019.   
 
     c.  Reference (b) states periodic fitness reports are scheduled to “allow necessary processing time prior to statutory selection boards.  It is incumbent upon the reporting senior to submit periodic reports on time so they may be processed in time to reach the selection board.” 
 
     d.  Reference (c) announced the CWO3 promotion selection board, which would convene on 17 June 2019, and  would select “all fully qualified” in the zones delineated by reference (d).  Per reference (d), Petitioner was in-zone for promotion to CWO3.   
 
     e.  Enclosure (3) is an advisory opinion (AO) furnished by Navy Personnel Command (PERS-80).  The AO recommends denial of Petitioner’s request for a SSB because “while the timing that [he] describes with respect to his FITREP is unfortunate and problematic, a review by NPC personnel indicates that [he] did not access his record in the month of June 2019” which “shows a lack of record maintenance.”  The AO, noting he did not write a letter to the promotion selection board, contends Petitioner had “more than adequate time to rectify” the fitness report and lack of a photo prior to the board.  As such, the AO concluded Petitioner failed to demonstrate he exercised the requisite due diligence to ensure the completeness and accuracy of his record prior to the convening of the promotion selection board, and a SSB is not warranted.   
 
     f.  Petitioner provides rebuttal, at enclosure (4), to the PERS-80 AO.  He explains that he did not access his record because he was aware that enclosure (2) was missing because the report was not in his physical possession, not due to a lack of due diligence to get it signed and submitted.  Petitioner further noted the repeated conversations between himself and the Executive Officer that the Commanding Officer was “tracking and that [he] would be debriefed soon” and stated the fitness report not being signed until 26 June 2019 was outside of his control.     
 
     g.  References (e) through (g) provide guidance on the convening of a SSB.  
 
     h.  Petitioner was selected for promotion to CWO3 by the FY 2021 Active Duty Navy Chief Warrant Officers, W-3, W-4, and W-5 Promotion Selection 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.  Noting the requirements outlined in reference (b) which states that it is “incumbent upon the reporting senior to submit periodic reports on time so they may be processed in time to reach the selection board,” the Board concluded it was command error that enclosure (2) was not available to the promotion selection board.  The Board concluded the missing fitness report at the FY 2020 board caused Petitioner’s failure of selection to CWO3.  The Board further noted Petitioner was selected for promotion to CWO3 by the FY 2021 Promotion Selection Board.  Rather than grant the requested SSB, the Board determined the injustice required immediate correction, in the form of backdating his promotion date, rather than continued waiting by Petitioner for a SSB to determined he would have been fully qualified by the FY 2020 promotion selection board if enclosure (2) had been completed on time by the command.   
 
The Board thus determined Petitioner’s date of rank (DOR) and lineal precedence in the grade of CWO3 shall be adjusted to the DOR and precedence he would have received had he been selected by the FY 2020 Active Duty Navy Chief Warrant Officers, W-3, W-4, and W-5 Promotion Selection Board. 
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Petitioner’s record be corrected by adjusting his DOR and precedence in the grade of CWO3 to the DOR and precedence he would have received had he been selected by the FY 2020 Active Duty Navy Chief Warrant Officers, W-3, W-4, and W-5 Promotion Selection Board. 
 
The Defense Finance and Accounting Service (DFAS) complete an audit of Petitioner’s records and make payment of any money that Petitioner may be entitled. 
    
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. 
     
							6/21/2021
							Executive Director