Docket No: 7478-17
APR 22 2019

From:	Chairman, Board for Correction of Naval Records
To:	Secretary of the Navy

Subj:	REVIEW OF NAVAL RECORD 
	      
Ref:	(a) 10 U.S.C. §1552
	                  		      		
Encl:	(1) DD Form 149 with attachments
      (2) Case summary	
      (3) Subject's naval record
      (4) CO, 1430 Ser 00/396 ltr of 9 Jan 15
      (5) Commander, NPC 1430 SER 8/057 ltr of 25 Feb 15 
	             
1.  Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting that his non-judicial punishment (NJP) of 17 September 2013 be removed from his Official Military Personnel File (OMPF), removal of the imposed punishment of reduction in rank and to be reinstated to the paygrade of E-6. 

2.  The Board, consisting of reviewed the petitioner's allegations of error and injustice on 13 December 2018 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 his naval records, and applicable statutes, regulations, policies.

3.  The Board, having reviewed all the facts of record pertaining to the petitioner's allegations of error and injustice finds as follows:

     a.  Before applying to this Board, the petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
          
     b.  On 17 September 2013, the petitioner received NJP for violation of Article 92, dereliction in the performance of duty, to wit: Paragraph U10020 of the Joint Federal Travel Regulations (JTR) by not using his housing allowance for the purpose intended, as it was his duty to do so.
Punishment awarded: reprimand, restriction, extra duty, forfeiture of pay (suspended for six months) and reduction in rank to the paygrade of E5.  The petitioner remained on active duty until he was honorably discharged upon completion of his required active service, sufficient service for retirement on 31 March 2015.  

     c.  The petitioner contends that there was no proof that his actions were willful.  He further contends that he clearly stated to his chain of command that it was an oversight not just by him but his landlord as well.  In addition, he contends that willfulness is a necessary part of discipline under the JTR. The petitioner contends that the NJP was not about the matter of the payment of rent, that the petitioner’s command tormented, humiliated, and threatened him, that the wrongs are being ignored by Navy Inspector General’s lack of response, that his record of good conduct for 18 years was not considered at NJP, and that the punishment was excessive in that it caused both a $500 per month for life drop in his retirement and difficulty finding employment because of retiring as an E5. 

     d.  In correspondence attached as enclosure (4), the petitioner’s commanding officer stated in part, since the petitioner’s NJP he has been an outstanding performer.  He has continued to carry himself in a professional manner, taking on any task assigned without hesitation.  He has stayed motivated and devoted to completing his assigned tasks although he knew that his fleet reserve package had been approved and he would be transiting out of the Navy.  Recommended approval for restoring the petitioner to petty officer first class.

     e.  In correspondence attached as enclosure (5), stated in part, a thorough review of the petitioner’s service record was conducted, as well as the actual offense which resulted in the petitioner’s reduction in rank.  After consideration, the petitioner’s request is disapproved.

CONCLUSION

Upon review and consideration of all the evidence of record, the Board concludes that the petitioner’s request warrants partial relief.  The Board recognized that the JTR does not limit disciplinary action to willful violations.  Despite the landlord failing to notice the lack of payment, the petitioner had an independent duty to follow the JTR.  The Board determined that the original NJP appears to be adjudicated without error and applied a lawful punishment on the petitioner for the matter presented.  The Board found no error or injustice in the actions of the command prior to the NJP nor in the change in retired pay resulting from the NJP.  The Board concurred with enclosure (4) and concluded that it is an injustice after the fairly stellar career the petitioner had that he be retired at the paygrade of E5.  The Board concludes that the petitioner’s request warrants partial relief in the form of restoring the petitioner’s rank to the paygrade of E6, effective the date of his retirement.

The Board is not the forum and does not have authority to force a response to a complaint by the Navy Inspector General.

In view of the foregoing, the Board finds the existence of an error and injustice warranting the following corrective action.

RECOMMENDATION

That the petitioner’s Naval record be corrected by restoring the petitioner’s paygrade of E6, effective the date of his retirement.  

Petitioner shall be issued a Certificate of Release or Discharge from Active Duty (DD Form 214).  Modified to read block 4a (Grade, rate or rank) "HM1" vice "HM2", block 4b (Pay grade) "E6" vice "E5", and 12i (Effective date of pay grade) "31 March 2015" vice "17 September 2013".

Note: Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner's financial record to determine if Petitioner is due any back pay.  Furthermore, an adjustment to his retirement account will be required.

That a copy of this Record of Proceedings be filed in the petitioner’s naval record.

That, upon request, the Department of Veterans Affairs be informed that the petitioner’s application was received by the Board on 12 September 2017.
	
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 Regulation, 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.




Executive Director