Docket No: 11155-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) 10 U.S.C. § 624 (c) SECNAVINST 1420.3 (d) SECNAVINST 1412.6M Encl: (1) DD Form 149 w/attachments (2) Petitioner’s Attorney Letter, dtd 16 Dec 20 (3) Motion to Enjoin, In Re: The Marriage of [Petitioner] and S.S., in the Circuit Court, , Case: (4) CNPC Memo Ser 833/0185, subj: Delay and Possible Removal of Your Permanent Promotion to Lieutenant Junior Grade, 4 Dec 17 (5) Notice of Voluntary Dismissal with Prejudice, In Re: The Marriage of [Petitioner] and S.S., in the Circuit Court, Case: (6) Memo Ser 00/114, subj: Prosecutorial Merit Recommendation of Domestic Violence Allegations against [Petitioner], 12 Feb 18 (7) USS Memo Ser CG58/062, subj: Delay of Promotion to Lieutenant Junior Grade ICO [Petitioner], 24 Apr 18 (8) Naval Station CO Memo Ser N9/0832, subj: Clinical Case Staff Meeting (CCSM) Case Closure Notification ICO [Petitioner], 21 Sep 18 (9) Action Memo, subj: Permanent Promotion Determination ICO [Petitioner], 10 Dec 18 (10) Fitness Report & Counseling Record (W2-O6) (180425-190425) (11) Petitioner Memo, subj: Complaint of Wrongs under Article 1150, U.S. Navy Regulations, 16 Jul 19 (12) CO Memo, subj: Complaint of Wrongs under Article 1150, UCMJ, by [Petitioner], 30 Sep 19 (13) Memo Ser 833/0339, subj: Your Permanent Promotion to Lieutenant Junior Grade, 5 Feb 20 (14) BUPERS-00J Memo, subj: Advisory Opinion ICO [Petitioner], 21 Jan 20 (15) Response to Advisory Opinion, In the Matter of [Petitioner] 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 backdating his date of rank for promotion to lieutenant junior grade (LTJG) to 18 August 2018, promoting him and backdating his date of rank to 18 August 2020, ensuring that he receives all applicable back pay and allowances for each adjustment to his date of rank, and that all adverse information be removed from his personnel file.1 1 Petitioner’s original application requested that his promotion to LTJG be backdated, that he be granted his choice of designators, and that all relevant adverse information be removed from his record. By letter dated 16 December 2020, however, his attorney notified that Board that Petitioner had recently been promoted to LTJG and received a new designator. This letter modified Petitioner’s requested relief to that reflected here. See enclosure (2). 2. The Board reviewed Petitioner’s allegations of error or injustice on 2 March 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. 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 or injustice, finds as follows: a. Before applying to the Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. While deployed in 2017, Petitioner experienced marital difficulties with his first spouse. As a result of these difficulties, Petitioner filed for divorce in July 2017. Following this filing, Petitioner’s former spouse made allegations of spousal abuse to the Fleet and Family Services Family Advocacy Program (FAP) and filed for an injunction for protection from domestic violence against Petitioner with the civilian authorities. Petitioner was subsequently the subject of a Navy Criminal Investigative Service (NCIS) investigation of this allegation, and he was referred to the FAP for an Incident Determination Committee finding. c. On or about 29 August 2017, Petitioner filed a motion with the to enjoin his former spouse from contacting his command and utilizing any third parties to contact her husband’s command, asserting that she was making false allegations against him for filing for divorce. See enclosure (3). d. By memorandum dated 4 December 2017, the Commander, notified Petitioner that his promotion to LTJG was delayed pending resolution of the NCIS investigation and FAP case. See enclosure (4). e. On or about 15 January 2018, the dismissed with prejudice the injunction for protection against domestic violence that Petitioner’s former spouse had filed against him at her request. See enclosure (5). f. By memorandum dated 12 February 2018, the Regional Legal Service Office recommended against the preferral of any assault charges against Petitioner because “there is no reasonable probability of attaining a conviction at court-martial.” The memorandum explained that “[t]he most germane factors in coming to [the recommendation not to prosecute the case was] the lack of corroborating evidence to support the allegations and the nature and the circumstances surrounding the allegations.” See enclosure (6). No subsequent disciplinary or administrative action was taken against Petitioner based upon the allegations made by his former spouse. g. Petitioner’s divorce was finalized in March 2018. h. By memorandum dated 24 April 2018, Petitioner’s commanding officer certified to the that Petitioner meets the requirement for exemplary conduct and recommended him for future service and promotion. See enclosure (7). i. Despite the command’s decision to take no disciplinary action against Petitioner and its certification of his exemplary conduct, the FAP refused to drop its case against Petitioner. After he refused their request to surrender his firearms, FAP substantiated the allegations against Petitioner. He was ordered to participate in a 26-week “Alternative to Violence” course, substance abuse screening, and a psychological evaluation, all of which he complied with. j. By memorandum dated 21 September 2018, Petitioner was notified that the open FAP case involving him was officially closed on 19 September 2018. See enclosure (8). k. While Petitioner was deployed with his ship out of the country and shortly making his final spousal support payment, Petitioner’s former spouse made another allegation to the FAP alleging emotional abuse. Without providing the opportunity to defend himself, FAP again substantiated the allegation. Petitioner refused to voluntarily complete the 26-week course that he had already completed, and was therefore determined by FAP to a treatment failure. l. On 10 December 2018, the CNPC found Petitioner unqualified for promotion to LTJG. The retained Petitioner for 18-months and noted that he may request promotion reconsideration in 12 months. See enclosure (9). m. On 1 May 2019, Petitioner’s commander issued him an adverse fitness report for the period 25 April 2018 to 24 April 2019, assigning him a rating of “1.0” (Below Standards) for Block 34 (Military Bearing/ Character). This rating was hand-written and initialed, indicating a downgrade from the “3.0” (Meets Standards) rating that had originally been inserted. In block 41, the following explanation for this ranting was hand-written as follows: “Due to two substantiated FAP cases with FFSC.” See enclosure (10). n. By memorandum dated 16 July 2019, Petitioner filed an Article 1150 complaint alleging that the adverse fitness report that he received on 1 May 2019 was improper because it was based on subjective accusations and not factual evidence, contrary to BUPERSINST 1610.10D. See enclosure (11). o. By memorandum dated 30 September 2019, the Commander, approved Petitioner’s request for relief in accordance with Article 1150. Although Petitioner’s commander reported that the adverse report was based upon multiple instances of dishonesty, the Commander, determined that the adverse fitness report should be removed from Petitioner’s record due to the absence of any documentation to support the allegations of dishonesty. He directed that Navy Personnel Command remove the adverse fitness report from Petitioner’s record. See enclosure (12). p. By memorandum dated 5 February 2020, the notified Petitioner that he was eligible for promotion to LTJG, effective 10 December 2019. See enclosure (13) q. Petitioner contends that the preponderance of evidence supports the fact that his former spouse fabricated the allegations that resulted in his delayed promotion, and that Petitioner has been denied procedural due process in the issuance of his adverse fitness report and in the continued delay of his promotion based upon the fabricated FAP allegations. With regard to the fitness report, he asserts that his commander used the evaluation as punishment or as an alternative to the proper disposition of alleged misconduct in violation of BUPERSINST 1610.1B. With regard to the continued promotion delay, Petitioner asserts that he was never informed that the had found him to be unqualified for promotion after his command certified his exemplary conduct, in violation of reference (c). r. By memorandum dated 21 January 2020, the NPC Office of Legal Counsel (PERS-00J) provided an advisory opinion for the Board’s consideration. The AO recommended that Petitioner’s application be denied solely based upon his failure to exhaust all administrative remedies. Specifically, the AO noted that the CNPC authorized Petitioner to request reconsideration of his promotion delay in 12 months, and that Petitioner’s request for consideration has not been adjudicated. Additionally, the AO noted that any request to overturn FAP decisions or to remove RAP records from the Petitioner’s records should be directed to the Command, Navy Installations Command. See enclosure (14). s. In rebuttal to enclosure (14), Petitioner’s counsel asserts that the AO failed to consider the legal requirements of references (b) and (d). Specifically, he asserts that in accordance with reference (d), had 21 days from receipt to respond to Petitioner’s promotion recommendation letter (enclosure (7)). If disagreed with the recommendation and found Petitioner unfit for promotion, then he was required to notify Petitioner of the reason and what action was to be taken. As that never happened, Petitioner asserts that he should have been promoted on his original promotion date of 19 August 2018. He further notes that the AO was erroneous in finding that Petitioner was found unqualified for promotion on 10 December 2018 based on finding that he lacked “mental, moral and professional qualifications,” as no such finding was made.2 Petitioner’s counsel also asserted that the AO misapprehends the Board’s authority by suggesting that Petitioner must first request his FAP records to be removed by the CNIC, arguing that the Board’s decision would allow for this correction. See enclosure (15). 2 Petitioner acknowledges that it is possible that this information was in the redacted portion of this decision document, but noted that even if it was there that it was never disclosed to him as required by law. CONCLUSION Upon careful review and consideration of all of the evidence of record, the Board found the existence of an injustice that warrants corrective action as indicated below. Specifically, the Board determined that Petitioner’s date of rank to LTJG should be backdated to that which it would have been if his promotion had not been improperly delayed after resolution of the matters that had originally justified his promotion withhold, and that his name should be placed on a supplemental all-fully-qualified list for promotion to LT, and that he date of rank to LT be backdated to that which it would have been but for the improper delay of his promotion. First, the Board found that Petitioner’s promotion to LTJG was improperly delayed after the original allegations against him had been resolved. While the Board found no error in the original withhold of Petitioner’s promotion to LTJG pending resolution of the pending NCIS investigation and FAP case against him, the Board did find an injustice in the continued withholding of Petitioner’s promotion after his commander had certified that he met the requirement of exemplary conduct and recommended him for promotion in enclosure (7). In accordance with reference (d), the CNPC had 21 days from receipt of enclosure (7) to take action on the promotion recommendation. If he continued to determine that Petitioner was not qualified for promotion, he was required to send notice to the officer with an explanation for that determination. This never happened in Petitioner’s case. If the CNPC determined that Petitioner was qualified for promotion subsequent to the commander’s promotion recommendation, then Petitioner’s promotion delay should have been terminated. In this case, no action was taken relative to Petitioner’s promotion status subsequent to his commander’s promotion recommendation until the CNPC found him unqualified for promotion on 10 December 2018. This occurred after his former spouse made a subsequent allegation against him and his commander issued him an adverse fitness report related to that allegation that has since been removed from his record. In other words, the promotion that should have already been executed was further delayed for reasons other than those for which it was originally withheld. Given that Petitioner has since been promoted to LTJG, the Board concludes that the second FAP complaint made by Petitioner’s former spouse was similar in substance to the first complaint that she made. Accordingly, Petitioner’s original promotion to LTJG should not have been delayed after his commander recommended his promotion, and his date of rank should be back dated to that which it would have been if the original promotion withhold had been terminated when it should have been. As a result of the unjust delay in Petitioner’s promotion to LTJG, he was not considered for promotion to LT when he would have been if not for the delay. Accordingly, the Board also finds an injustice in the failure to consider Petitioner for promotion to LT. The Board carefully reviewed Petitioner’s Official Military Personnel File and could find no evidence of adverse material. Specifically, apart from the current promotion date that the Board is recommending to be corrected, the Board could find no evidence remaining of his promotion withhold, his FAP cases, the NCIS investigation, or the adverse fitness report. Accordingly, the Board determined Petitioner’s request for the removal of adverse material to have become moot. RECOMMENDATION In view of the above, the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner’s naval record be corrected by adjusting his date of rank to LTJG and lineal precedence to that which it would have been if his promotion withhold had been terminated upon receipt of the promotion recommendation of 24 April 2018; That Petitioner’s name be forwarded on a supplemental all-fully-qualified list for promotion to the rank of LT to the Secretary of Defense, and if approved for promotion that his date of rank be back dated to that which it would have been if he had been on the original all-fully-qualified list for promotion with his updated date of rank to LTJG; That Petitioner’s backdated date of rank to LTJG and, once appointed, his backdated date of rank to LT, be forwarded to the Defense Finance and Accounting Service to determine the back pay and allowances due to him by virtue of these corrections; That no further corrections be made to Petitioner’s naval record. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action.