DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490

Docket No. 10308-19                                                        
Ref: Signature Date 

From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy 
Subj: REVIEW OF NAVAL RECORD OF , USN,  

Ref: (a) Title 10 U.S.C. § 1552 
(b) BUPERSINST 1610.10D (EVALMAN) 

Encl: (1) DD Form 149 w/attachments 
      (2) Report of Non-Judicial Punishment of 4 Oct 18 
     (3) Fitness Report and Counseling Record 1 Jun 18 to 28 Feb 19
     (4) Fitness Report and Counseling Record 1 Mar 19 to 28 May 19 
     (5) Office of Legal Counsel memo PERS-00J of 20 Feb 20 
     (6) NPC memo 1610 PERS-32 of 23 Jan 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 record be corrected by removing from his record (1) the non-judicial punishment (NJP) of 4 October 2018 and all matters referencing the NJP; (2) the fitness reports covering the periods 1 June 2018 to 28 February 2019; and (3) fitness report covering the period 1 March 2019 to 28 May 2019 and if this fitness report is not removed, to include in the record his rebuttal that Navy Personnel Command (PERS-32) had previously rejected. 

2.  The Board, consisting of ,            reviewed Petitioner’s allegations of error and injustice on 2 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 record, 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, finds as follows:

    a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.  

   b.  On 15 September 2018 Petitioner was found sleeping on watch during the ship’s night transit through a congested area.  After a command investigation, on 4 October 2018 Petitioner underwent NJP and pled guilty to violating Article 92, Uniform Code of Military Justice (UCMJ) – Dereliction in the performance of duties, enclosure (2).  Petitioner’s fitness report of 1 June 2018 to 28 February 2019, enclosure (3) noted the NJP.  

    c.  Petitioner was diagnosed with sleep apnea, and on 26 February 2019 a medical board placed Petitioner on limited duty (LIMDU).  Petitioner received LIMDU orders requiring transfer from his command; however, Petitioner and his command disagreed on the validity of the orders.  Petitioner received a detaching fitness report for the period 1 Mar 2019 to 28 May 19, enclosure (4), which noted deficiencies in the Petitioner’s actions regarding his transfer. 

    d. Petitioner contends that the NJP and enclosure (3) which noted the NJP, are invalid because the incident was caused by a medical condition, not negligence. In addition, the Petitioner contends enclosure (4) is unjust as his command did not follow his Limited Duty restrictions and orders.

    e.  Enclosure (5), an advisory opinion (AO) furnished by Office of Legal Counsel (BUPERS­00J) recommended to deny Petitioner’s request. The AO noted the NJP, and subsequently enclosure (3), were not unjust as the evidence provided showed Petitioner had reason to know that he suffered from a condition that could cause him to lose consciousness with little or no warning and that he failed to seek medical attention for the condition prior to the incident.

    f.  Enclosure (6), an advisory opinion (AO) furnished by Navy Personnel Command (PERS­32) recommended Petitioner’s request be partially granted, due to the fact that reference (b) requires, when there are adverse comments, the reporting senior to obtain the member’s signature, acknowledging the contents of the fitness report.  Enclosure (4) contained adverse comments; however, the Petitioner did not sign the fitness report, rendering the report invalid.

 CONCLUSION 
Upon review and consideration of all the evidence of record, and especially in light of the advisory opinions, the Board determined that Petitioner’s request warrants partial relief. Petitioner’s fitness report of 1 March 2019 to 28 May 2019 included adverse comments requiring the report to be signed by the Petitioner, which was not obtained.  The Board thus concluded that the fitness report of 1 March 2019 to 28 May 2019 shall be removed.
 
The Board, however, determined that Petitioner’s non-judicial punishment and fitness report of 1 June 2018 to 28 February 2019 shall remain.  In this regard, the Board noted Petitioner had knowledge of a possible medical issue and did not seek medical care placing himself and others at risk; Petitioner fell asleep while on watch, a dereliction of his duties.
 
RECOMMENDATION 

In view of the above, the Board recommends the following corrective action: 
Remove fitness report 1 March 2019 to 28 May 2019 from Petitioner’s record. 
No further relief is to 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. 

2/17/2021 

Executive Director