DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3028-18 SEP 17, 2018 From: Chairman, Board for Correction of Naval Records To: Secretary ofthe Navy Subj: REVIEW OF NAVAL RECORD OF USN, Ref: (a) 10 U.S.C. §1552 (b) NAVADMIN 232/12 (c) OPNAVINST 5354.IF (Navy Equal Opportunity Policy) (d) CO ltr 1626 Ser LGL/050 of 8 Feb 13 Encl: (1) DD Form 149 (2) Case summary (3) CO, ltr 1440 Ser CO/182 of 10 Jun 16 (4) NPC (PERS-00J) memo of 11 Jan 18 (5) Dir, CLD (Code 20) ltr 5819 Ser 20/1415 of 13 Oct 17 1. Pursuant to the provisions of reference ( a), Petitioner, an active duty enlisted sailor, filed enclosure (1) with this Board requesting the following corrections to his official military personnel record (OMPF). Enclosure (2) applies: a. Set aside his nonjudicial punishment (NJP) of 5 February 2013 and restore all rights, pay, privileges, grade, and personnel matters adversely impacted by the NJP. This impliedly requests removal of the Detachment for Cause (DFC) documentation, both administrative separation packages, and the Evaluation Report & Counseling Records (EVALS) which were submitted to remove his frocking authority and reinstate his recommendation for advancement and retention. b. Remove his E-6 evaluations from September 2012 through September 2015 and substitute with new performance evaluations because striking these evaluations would leave a three-year gap in evaluation history. c. Restore his date of frocking to E-7 as 15 September 2012 and the date'of paygrade advancement to 16 September 2013. This impliedly requests removal ofthe administrative remarks (Page 13) entry dated 5 February 2013. d. Direct his promotion to E-8. 2. The Board, consisting of review Petitioner's allegations of error and injustice on 26 July 2018 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence ofrecord. Documentary material considered by the Board consisted ofthe enclosures, relevant portions of Petitioner's naval records and applicable statutes, regulation, and policies. In addition, the Board considered the advisory opinion (AO) provided by the Navy Personnel Command (PERS OOJ), the AO provided by Office ofthe Judge Advocate General (Code 20), and Petitioner's rebuttal statement with evidence. 3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department ofthe Navy. b. Petitioner reported to the on 20 July 2009. c. On 24 July 2012, Petitioner provided a statement as part of an investigation into an improper relationship between DC3 W and DC2 M. d. On 28 July 2012, DC3 W filed an informal Equal Opportunity (EO) complaint against Petitioner alleging Petitioner had rested his head on her shoulder on one occasion, tried to rub her back several times, attempted to put a "ball of plastic trash" down her coveralls on one occasion, and grabbed her elbow on several occasions. Petitioner was counseled on 31 July 2012. DC3 W was satisfied with the Command's resolution. e. Reference (b) announced Petitioner's selection for advancement to Chief Petty Officer. He was frocked to that grade on 16 September 2012. f. On 3 November 2012, DCJ W filed a formal EO complaint alleging Petitioner continued to interact with her, attempted to touch her elbow, and generally was not respecting the informal resolution. As a result, a Command Investigation (Cl) was initiated into the EO allegations. g. The Investigating Officer (IO) completed the final report on 15 November 2012. He determined there was no factual support to the new allegations and concluded the issue was a personality conflict. On 6 December 2012, as part of the legal sufficiency review required by reference (c), the LCDR Staff Judge Advocate (SJA) created a memorandum for the record stating he would be conducting further interviews for a supplemental report. h. During the course of the CI, Petitioner's Commanding Officer (CO), Executive Officer (XO), and Command Master Chief (CMC) each conducted separate interviews and became de facto IOs since the results ofthe interviews were relied upon by the LCDR SJA in his supplemental report. LCDR SJA opined the sexual harassment (SH) allegation was supported by the evidence, and the CO substantiated the SH. There is no evidence the Command completed the EO complaint form as required by reference (c), and no evidence Petitioner was informed of his right to appeal the EO investigation as also required by reference (c). i. As a result ofthe substantiated SH, Petitioner received a nonpunitive letter of caution (NPLOC). Additionally, Petitioner was verbally ordered by CMC to remain clear of damage control (DC) spaces and DC3 W. The DFC process was initiated, and Petitioner was assigned temporary additional duty (TAD) off the ship. j. On 29 January 2013, the day after receipt ofthe NPLOC, Petitioner returned to the ship to sign the paperwork. The LT SJA, even after Petitioner voiced discomfort, ordered Petitioner to meet directly with the LCDR SJA whose office was located across from the DC spaces. LCDR SJA was not in the office so Petitioner waited for his return, and after continued delay, he entered a DC space next to the LCDR SJA's office to call the legal office. DCl H was in the space, and DC3 W was cleaning the space. Petitioner immediately removed himself, returned to the legal spaces, and ultimately was required to return to the LCDR SJA's office to sign the documentation. k. Petitioner was ordered by the CMC to return to the Command, and, upon reporting on 5 February 2013, Petitioner was informed NJP would occur shortly due to violation of Article 91 (insubordinate conduct towards a master chief) and Article 92 ( violation of reference ( c)) of the Uniform Code of Military Justice. Petitioner requested DC 1 Has a witness but DCl was not informed of the request and was specifically ordered, along with the DC division, not to talk to Petitioner. Petitioner's division officer (DIVO), department head, and appointed EO representative were not present at the NJP. According to the DIVO's statement, he was never informed of the NJP. 1. Petitioner was found guilty at NJP and awarded a punitive letter of reprimand (see reference (d)). Petitioner's CO also withdrew the frocking authority to Chief Petty Officer. m. Petitioner appealed the NJP to Commander, Carrier Strike. The appeal was denied. n. On 18 March 2013, Petitioner filed a Department of Defense (DoD) Inspector General (IG) hotline complaint alleging that DC3 W made the false SH allegation against him in retaliation for the statement he provided during the July 2012 CI into the improper relationship between DC3 Wand DC2 M. The IG complaint was closed after a Preliminary Investigation determined Petitioner's Article 138 complaint was with the Secretary of the Navy for final adjudication. o. On 16 June 2013, the CO removed Petitioner's right to wear his Surface Warfare and Air Warfare breast insignias, approximately four months after the NJP and for no apparent reason. p. On 16 July 2013, a DFC request submitted by the CO was approved by Commander, Navy Personnel Command (CNPC). However, a review of the adverse field code 38 DFC documentation submitted to Petitioner's record shows the Command never detached Petitioner but instead he remained attached to the Command in a TAD status. q. On 31 July 2013, CNPC directed Petitioner be processed for administrative separation due to the substantiated SH complaint. r. Subsequently, on 29-30 October 2013, Petitioner presented his case to an administrative discharge board (ADB). The ADB majority determined the evidence did not support a finding of misconduct and unanimously recommended retention. All documentation associated with the ADB remains in Petitioner's record under field code 38. s. On 29 November 2013, the CO, who disagreed with the ADB's determination and relied upon the supplemental investigation which he acted as an IO for, forwarded a request to CNPC (PERS 832) to administratively separate Petitioner pursuant to the Best Interest of the Service (BIOTS) due to his misconduct. PERS-832 granted the CO's request to administratively process for BIOTS. Petitioner was re-notified for the same alleged misconduct for which he had previously received NJP and for which the previous ADB did not substantiate. On 1 October 2015, PERS-832 notified the Command that administrative separation action was no longer contemplated but the documentation associated with the command's request to separate pursuant to BIOTS still remains in Petitioner's record under field code 38. t. On 16 January 2014 and again on 5 February 2014, Petitioner requested the CO set aside his NJP. The CO denied both requests. u. Petitioner filed an Article 138 complaint on 2 April 2014. The complaint was dismissed for procedural defects and not on the merits of the issues that were raised. v. A new CO took command of in July 2014. Petitioner was subsequently recalled from his TAD status to serve onboard again. The CO declined to set did sign an EVAL which reinstated Petitioner's recommendation for advancement and retention and submitted enclosure (3) to the Board in support of Petitioner's request for relief. w. From September 2012 to September 2015, post-DFC and upon his return to the command under the new CO, Petitioner received adverse EVALs removing his frocking authority (16 September 2012 to 5 February 2013), reinstating his recommendation for advancement and retention (14 November 2014 to 16 September 2015), and while TAD from the command (6 February 2013 to 15 November 2013 and 16 November 2013 to 15 November 2014). x: In correspondence attached as enclosure ( 4), the office having cognizance over the subject matter addressed in Petitioner's application commented, in part, that "enough anomalies exist to cumulatively question whether an injustice or inequity has occurred." y. In correspondence attached as enclosure (5), the office having cognizance over the subject matter addressed in Petitioner's application commented, in part, that "the fundamental flaws of the CI and NJP amounted to a due process violation, constituting material error that provides the basis for favorable relief." Code 20 stated "petitioner has overcome the presumption of regularity, and the evidence of record demonstrates probable material errors occurred." CONCLUSION Upon review and consideration of all the evidence of record, especially in light of enclosures (4) and (5), the Board concluded Petitioner's request warrants partial favorable action. The Board, concurred with the analysis and recommendation provided in enclosure (4) and determined the fundamental flaws of the CI and NJP violated Petitioner's due process, constituted material error, and were egregiously unjust. The Board concurred with granting the relief requested by Petitioner with two exceptions. The Board denied Petitioner's request to direct his promotion to E-8, but concluded Petitioner is entitled to a Special Selection Board (SSB) due to the errors and injustice that prevented him from being time-in-grade (TIG) eligible in September 2016 for consideration for advancement to E-8. The Board also denied the request to direct the creation of new performance EVALs for the removed EVALs because it is not within their purview to create EVALs but the Board determined it is unjust for Petitioner to be prohibited from submitting documentation in support of his SSB that post-dates the date of his TIG eligibility due to the injustice that prevented him from serving in Chief Petty Officer leadership billets and positions of greater authority that he would have otherwise undoubtedly occupied. Lastly, the Board concluded that, if Petitioner is advanced to E-8, he is entitled to all back pay and allowances associated with the retroactive date of rank. RECOMMENDATION In view of the foregoing, the Board finds the existence of error and injustice warranting the following corrective action. Petitioner's NJP of 5 February 2013 be set aside and all rights, pay, and privileges be completely restored. Petitioner's record be corrected by removing the following derogatory material: -DOC IDs: 20392237, 25683898, 25608306, 27177960, 20024125 -All records associated with Petitioner's NJP -All records associated with Petitioner's DFC -All records associated with both administrative separation proceedings -All Administrative Remarks (Page 13) entries associated with removal of frocking authority Petitioner's record be corrected by removing the following EVALs: -EVAL for the reporting period of 16 September 2012 to 5 February 2013, which removed Petitioner's frocking authority (DOC ID #22134712) -Post-DFC EVALs for the reporting periods 6 February 2013 to 15 November 2013 (DOC ID# 22288676) and 16 November 2013 to 15 November 2014 (DOC ID #26609582) -EVAL for the reporting period of 16 November 2014 to 16 September 2015, which was submitted to reinstate Petitioner's recommendation for advancement and retention (DOC ID #27394205) Petitioner receive administrative fillers inserted by PERS-32 into Petitioner's OMPF in place of removed EV ALs in order to eliminate gap in service. Petitioner's promotion to E-7 be reinstated with his time in rank at E-7 started on 14 September 2013. Petitioner receive all back pay and allowances associated with his reinstatement ·to E-7. The Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner's records and make payment of any money Petitioner is entitled. NPC convene an Enlisted Special Selection Board to consider Petitioner's advancement to E-8. Petitioner be allowed to submit documentation in support ofhis Special Selection Board that post-dates his NJP and the date of his TIG eligibility. If Petitioner is advanced to E-8, he will receive all back pay and allowances associated with the retroactive date of advancement to E-8. Any material or entries inconsistent with or relating to the Board's recommendation be corrected, removed or completely expunged from Petitioner's record, that no such entries or material be added to the record in the future. This includes but is not limited to all information systems/data base entries which reference and/or discuss the material being expunged. 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 Boards in the above entined 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