DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9786-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/enclosures (2) CNPC ltr 1420 Ser 833/1403 of 23 Sep 15 (3) NPC memo 1610 PERS-801 of 26 Feb 19 1. Pursuant to the reference, Petitioner, a former commissioned officer of the Navy Reserve, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by (i) promoting him to commander/O5; (ii) removal of his Fiscal Year (FY) 2018 and FY 2019 failures of selection, or alternatively, award three months of constructive service credit and direct the Navy Personnel Command (PERS-911) to consider him for continuation; (iii) removal of his 23 September 2015 punitive letter; (iv) reinstatement in the Navy Reserve; and (v) award constructive drilling credit between his discharge date and the Board’s decision. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 7 January 2020, 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, as well as 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. On 29 March 2017, a panel of this Board directed Petitioner’s record be corrected by removing his failures of selection incurred by the FY 2012 and FY 2017 Navy Reserve Commander Line (Merchant Marine) Promotion Selection Boards; removal of his fitness report for the reporting period 1 November 2012 to 31 October 2013, and 23 April 2014 supplemental letter; by transferring him from the Individual Ready Reserve (IRR) to the Selected Reserve; and 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. Subsequently, Petitioner’s record was corrected, with the exception of the removal of enclosure (2), a letter from the Commander, Navy Personnel Command, to the Petitioner, notifying him that his name had been removed from the FY 2012 Navy Reserve Commander Line (Merchant Marine) Promotion List, and that the removal constitutes a failure of selection. The corrections to Petitioner’s record were not effected until after he incurred a failure of selection by the FY 2018 promotion selection board. c. Petitioner asserts that enclosure (2), the letter in his official military personnel file (OMPF), as well as the absence of fitness reports [during the period he was separated from the Navy] caused his failures of selection by the FY 2018 and FY 2019 promotion selection boards. Petitioner therefore contends that his mandatory discharge due to his failures of selection, prior to achieving the required qualifying years for retirement or consideration for continuation, is unjust. d. An advisory opinion (AO) at enclosure (3), furnished by the Navy Personnel Command (PERS-801), recommended that Petitioner receive partial relief. PERS-801 determined that Petitioner’s FY 2018 failure of selection should be removed, noting that the fitness reports and supplemental letter, later removed by a panel of this Board, were available for consideration by the FY 2018 promotion selection board. With regard to their recommendation not to remove Petitioner’s FY 2019 failure of selection, PERS-801 noted that the fitness reports and supplemental letter had been removed by the time that board convened, and that [promotion selection] board members are tasked by precept, signed by the Secretary of the Navy, to select the “best and fully qualified” officers for promotion, and that a selection board utilizes information provided from a member’s official service record to provide an accurate and fair portrayal of an officer’s performance. PERS-801 added that, unfortunately, statutory limits for numbers of officers at each pay grade, as well as service requirements, do not allow all officers to be selected for promotion. e. In his 22 May 2019 rebuttal to the advisory opinion (AO), Petitioner reiterated that the punitive 23 September 2015 letter and missing fitness reports make promotion impossible, and based on his honorable service, and the injustices he has faced and overcome, the requested relief is warranted. CONCLUSION Upon review and consideration of all the evidence of record, and in light of the AO, the Board determined that Petitioner’s request warrants partial relief. The Board noted that Petitioner failed selection by the FY 2018 promotion selection board prior to this Board’s 29 March 2017 decision to correct his naval record, and that all material inconsistent with or relating to that Board’s recommendation still had not been removed from his record when Petitioner was considered and failed selection by the FY 2019 promotion selection board. The Board also noted that Petitioner was involuntarily discharged on 1 January 2019 as a result of his failures to select for promotion. The Board thus concluded that Petitioner’s FY 2018 and FY 2019 failures of selection shall be removed from his record, and that, providing he is otherwise qualified, he shall be reinstated in the Navy Reserve so that his record reflects continuous service, and that he was not involuntarily discharged on 1 January 2019. Additionally, Petitioner will be credited with eight drill points for his 2018 to 2019 anniversary year, and credited with 50 drill points for his 2019 to 2020 anniversary year, and he shall receive any retroactive pay and allowances he would have otherwise been entitled to, had he not been involuntarily discharged on 1 January 2019. The Board also concluded that all materials in Petitioner’s record that reference his selection removal, failures of selection, or 1 January 2019 discharge will be removed. The Board determined that it did not have the authority to promote Petitioner to commander/O-5, and denied Petitioner’s request for promotion. RECOMMENDATION In view of the above, the Board recommends the following corrective action. That Petitioner’s naval record be corrected by removing his failure of selection incurred by the FY 2018 Navy Reserve Commander Line (Merchant Marine) Promotion Selection Board. That Petitioner’s naval record be corrected by removing his failure of selection incurred by the FY 2019 Navy Reserve Commander Line (Merchant Marine) Promotion Selection Board. Providing he is otherwise qualified, that Petitioner be reinstated in the Navy Reserve, within six months from the date of this letter, and that his record reflect that he served continuously in the Navy Reserve, and was not discharged on 1 January 2019. That Petitioner’s naval record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to commander as an officer who has not failed of selection for promotion to that grade. That Petitioner’s naval record be corrected by crediting eight drill points for his 2018 to 2019 anniversary year. That Petitioner’s naval record be corrected by crediting 50 drill points for his 2019 to 2020 anniversary year. That Petitioner’s naval record be corrected by removing enclosure (2), the letter notifying him that his name had been removed from the FY 2012 Navy Reserve Commander Line (Merchant Marine) Promotion List. 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, failures of selection, and involuntary separation. That 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 to. That no further relief be granted. 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.