DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 2566-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) BUPERSINST 1610.10B (EVALMAN) (c) Manual for Courts-Martial (2008 ed.) (d) JAGINST 5800.7E Encl: (1) DD Form 149 w/attachments (2) Evaluation report and counseling record for the reporting period 16 Nov 10 to 29 Dec 10 (3) NPC memo 1610 (PERS-32) of 14 Mar 19 1. Pursuant to reference (a), Petitioner, an enlisted member of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing his evaluation report and counseling record (Eval). 2. Although Petitioner’s application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider his application on its merits. The Board reviewed Petitioner’s allegations of error and injustice on 31 March 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. Petitioner was issued enclosure (2), a special/regular Eval for the reporting period 16 November 2010 to 29 December 2010. Block 43 (comments on performance) of the Eval states that it was submitted due to Petitioner’s nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ), Article 91 (insubordinate conduct towards a non­commissioned officer), and that the punishment awarded was a letter of reprimand. Other than the Eval, there is no record of the NJP in Petitioner’s official military personnel file (OMPF). c. Petitioner contends that his Eval is invalid because his NJP was dismissed and that he was not issued a letter of reprimand. Petitioner also contends that the Eval was submitted as punishment. d. An advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32), enclosure (3), noted that reference (b) allows a reporting senior (RS) to submit a special Eval for misconduct, and to document details of misconduct in a member’s performance Eval. PERS-32 determined that Petitioner’s RS was within his authority to issue the adverse special Eval to document Petitioner’s NJP and the punishment awarded, that nothing in his petition indicated that his RS acted for illegal or improper purposes, or that the Eval report lacked rational support. The AO noted that, if Petitioner believed his RS prepared the Eval for reprisal or in retaliation, he could have filed a complaint of wrongful treatment under one of the processes set up for that purpose. e. Pursuant to reference (c), failure to comply with any of the procedural provisions of Part V of this Manual shall not invalidate a punishment imposed under Article 15, unless the error materially prejudiced a substantial right of the servicemember on whom the punishment was imposed. Pursuant to reference (d), the unit punishment book (NAVPERS 1626/7) documents and records a NJP (including the offenses, punishment imposed, date imposed, etc., and whether the Sailor was properly advised of his rights and the offenses alleged, whether he accepted NJP, and whether he appealed). The UPB is required to be maintained in the Sailors’s OMPF, and the absence of a UPB may serve as evidence that NJP was not imposed. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. Although the Board substantially concurred with the AO that the Eval is administratively and procedurally written in accordance with reference (b), the Board determined that Petitioner’s NJP was not imposed and properly documented pursuant to references (c) and (d). The Board noted, however, that the Eval is the only place that the NJP is documented in Petitioner’s OMPF. TheBoard also noted that it is the command’s responsibility to properly administer and record the NJP, which the command failed to do. Without properly recording the NJP, it is not clear that the command provided Petitioner with the procedural protections to which he was entitled, such as consultation with an attorney and the opportunity to demand a trial by court-martial. Because it is unclear that Petitioner’s due process rights were protected, the Board concluded that the Eval documenting Petitioner’s NJP shall be removed from his OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. That Petitioner’s record be corrected by removing enclosure (2), his Eval for the reporting period 16 November 2010 to 29 December 2010, and that a memorandum containing relevant identifying data be inserted in its place in order to maintain continuity. 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy. Sincerely,