From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments 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 to establish Petitioner’s promotion to E7 backdated to his original promotion date with back pay and allowance, removal of a performance evaluation covering 11 June 2018 through 5 December 2018, and removal of Administrative Remarks documenting the removal of his advancement recommendation dated 5 December 2018. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 18 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 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 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. Petitioner enters service with Navy Reserve in 2004 after completing an enlistment with the Marine Corps Reserve. He serves without incident until his assignment to in August 2014. Upon his arrival, Petitioner is initially designated Assistant Educational Services Officer (ESO) but later assigned as ESO in 2017 upon the previous ESO’s departure. It is worth noting that BUPERSINST 1430.16F states that all advancement examinations shall be in the custody of an officer, master chief, senior chief, chief petty officer, or civilian. As the ESO, Petitioner’s duties required him to handle advancement examinations. c. In 2018, Petitioner was reassigned as Assistant ESO to a Chief Petty Officer ESO in preparation of a pending command assessment. However, an IG complaint was filed against Petitioner on 15 March 2018 alleging he improperly accessed the command safe to change his answers on the E7 examination while acting as ESO. As part of the investigation, Petitioner informed the investigator that he possessed the command safe combination as ESO but did not have unfettered access to the safe since he was required to be accompanied by senior personnel when accessing the safe. Petitioner selected for E7 on 11 July 2018 and transferred to . d. On 31 October 2018, the IG report in Petitioner’s case was issued. Despite finding no evidence to substantiate the original allegation that he changed his E7 advancement examination answers, the report substantiated a finding that Petitioner wrongfully accessed the command safe that contained advancement examinations and that he provided a false official statement denying access to the safe. Commanding Officer, initially attempted to impose non-judicial punishment on Petitioner but, instead, referred him for administrative separation processing once Petitioner refused to accept non-judicial punishment. Petitioner’s advancement to E7 was withdrawn on 5 December 2018 and the withdrawal was documented in a performance evaluation covering 11 June 2018 through 5 December 2018 and Administrative Remarks dated the same day. e. On 18 March 2019, an administrative separation board voted unanimously to retain Petitioner in the naval service after finding no misconduct. On 3 December 2019, Commanding Officer, provided a letter explaining the circumstances of Petitioner’s assignment as ESO and recommending the Board grant the relief requested. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief. The Board determined that the preponderance of the evidence supports removing Petitioner’s advancement withdrawal and advancing him to E-7 on his originally scheduled date for advancement. The Board also determined it was appropriate to remove both the performance evaluation covering 11 June 2018 through 5 December 2018 and the Administrative Remarks from 5 December 2018 that document the removal of his advancement recommendation to E7. In making this finding, the Board concluded there was no evidence Petitioner cheated on his E7 advancement examination. Further, the Board determined that Petitioner was placed into the ESO position by his Commanding Officer, with no fault of his own, resulting in the IG finding that he had improper access to advancement examinations. Finally, the Board did not find the IG substantiation of false official statement by Petitioner persuasive. In the Board’s opinion, the explanation provided by Petitioner regarding his restricted safe access was reasonable and plausible in light of Commanding Officer, , letter to the Board. Specifically, the Board determined that having the combination to the command safe was not the same as having “access” when Petitioner’s ability to use the safe unfettered was constrained by the location of the safe, existing security systems that recorded access to the office, and the requirement to be accompanied by senior personnel at the command when accessing the safe. In making their findings, the Board also relied on the administrative separation board conclusion that Petitioner did not commit misconduct. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by reinstating Petitioner’s advancement recommendation to E7 effective 5 December 2018, the date his recommendation was withdrawn by Commanding Officer, . Petitioner will be advanced to E7 effective the date he was originally scheduled to be advanced and be paid all associated back pay and allowances authorized by law. Petitioner’s performance evaluation covering 11 June 2018 through 5 December 2018 will be expunged from his record along with Administrative Remarks dated 5 December 2018 that document the withdrawal of his advancement recommendation. 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.