Docket No: 2977-19 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. § 1558 (c) SECNAVINST 1402.1 Encl: (1) DD Form 149 with attachments and supplemental submissions (NR20170006775/NR20190002977) (2) NPC (PERS 00J) memo of 21 Nov 18 (3) NPC (PERS 00J) memo of 1 May 19 (4) Rebuttal submission of 16 May 19 (5) OJAG (Code 13) ltr 5420 Ser 13/1PL1090.19 of 27 Dec 19 (6) Rebuttal submission of 5 Feb 20 1. Pursuant to reference (a), Petitioner, a retired Naval Officer, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the following relief: a. Set aside the removal of his name from the FY13 Active Duty (AD) Lieutenant (LT) All Fully Qualified Officer List (AFQOL) and resulting Failure of Selection (FOS) documentation; b. Set aside the removal of his name from the FY17 AD LT AFQOL and resulting FOS documentation (Examiner’s note: Petitioner requested the set aside of the removal from the FY17 AFQOL, but the record indicates he was removed from the FY18 AD LT AFQOL. Further discussion will reference the FY18 AD LT AFQOL.); c. Removal of the Chief of Naval Operations (CNO) action memos regarding his removal from the FY13 and FY18 AD LT AFQOL; and d. After promotion to LT, grant a Special Selection Board (SSB) for selection to Lieutenant Commander (LCDR). 2. The Board reviewed Petitioner's allegations of error and injustice on 23 April 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 naval service records, and applicable statutes, regulations, and policies. The Board also considered the advisory opinions (AO) provided by Navy Personnel Command (PERS 00J) and Office of the Judge Advocate General (Code 13). 3. The Board, having reviewed all of 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. Relevant Background Facts b. In May 2003, while Petitioner was a master-at-arms second class petty officer (MA2), a petty officer in Petitioner’s command suspected that Petitioner was viewing pornography on a government computer. NCIS commenced an investigation and conclusively determined Petitioner misused his government computer to view adult pornography. The NCIS report of investigation (ROI) of 9 June 2003 was forwarded to Petitioner’s command for administrative action. On 18 June 2003, he received nonjudicial punishment (NJP) for misuse of a government computer to view adult pornography. c. Petitioner was selected as a Limited Duty Officer (LDO) and commissioned as an Ensign in the Navy on 1 May 2009. On 1 May 2011, he was appointed to Lieutenant Junior Grade (LTJG). d. In 2012, while serving as a temporary LDO in the grade of LTJG, Petitioner was selected for promotion to the grade of LT by the FY13 AD AFQOL selection process. The Secretary of Defense approved his appointment. On 27 September 2012, ALNAV 057/12 publicly announced his selection. He was assigned a projected date of rank of 1 May 2013. e. In December 2012, Petitioner was accused by a civilian woman of sexual assault, resulting in NCIS’ commencement of an investigation. f. On 29 March 2013, the Executive Officer (XO) notified Commander, Navy Personnel Command (CNPC) of the ongoing NCIS investigation. On 29 March 2013, CNPC (PERS 833) notified Petitioner that his promotion was delayed because he was under investigation by NCIS. g. On 11 August 2013, CO imposed NJP on Petitioner and awarded a Punitive Letter of Reprimand (PLOR). The CO submitted a report of NJP to Navy Personnel Command (NPC) and recommended Petitioner show cause for retention in the naval service. The CO also issued an adverse FITREP. h. On 3 September 2013, NCIS closed the investigation because repeated efforts to contact the alleged victim were unsuccessful. i. On 9 May 2014, CNPC directed Petitioner to show cause for retention in the naval service before a Board of Inquiry (BOI) on the basis of misconduct and substandard performance. j. On 23 September 2014, the BOI convened, found that neither basis for separation was met, and retained Petitioner in the Navy. k. On 29 February 2016, the Board removed material regarding the NJP, but not the adverse FITREP, which it determined should remain in Petitioner’s file after redacting the language relating to the NJP. l. On 8 June 2016, CNPC notified Petitioner that his promotion remained delayed and that a NCIS ROI of 6 August 2003 would also be considered by the Secretary of the Navy (SECNAV) when making his promotion determination. m. On 28 June 2017, the SECNAV removed Petitioner’s name from the FY13 AD AFQOL, constituting his first FOS for promotion to the grade of LT. He then requested reconsideration of the Board’s 29 February 2016 decision, requesting that the redacted adverse FITREP be removed from his record entirely. After the Board denied the relief, Petitioner filed suit in the United States for the , which remanded the case to the Board for further consideration. n. Petitioner was selected for promotion to LT by the FY18 AD AFQOL selection process and was assigned a projected date of rank of 1 October 2017. o. On 24 April 2018, () notified the Petitioner that SECNAV had withheld his name from the promotion scroll pending review of adverse information that was forwarded by the AFQOL process to SECNAV. Specifically, the AFQOL forwarded the above adverse information relating to Petitioner viewing adult pornography on his government computer in 2003, as well as the allegations that Petitioner sexually assaulted a woman in 2012. p. On 15 February 2019, the SECNAV removed Petitioner’s name from the FY18 AD AFQOL constituting his second FOS for promotion to the grade of LT. Petitioner was subsequently retired from the naval service as a LTJG on 30 April 2019. q. On 28 February 2019, the Board determined the redacted FITREP should be removed from Petitioner’s administrative record and ordered this action on behalf of the SECNAV. Contentions r. Petitioner contends his name was unjustly removed from the FY13 and FY18 AD AFQOL. Specifically, he contends the following: (1) Petitioner contends the delay of his FY13 promotion to LT was improper and unlawful. Specifically, he contends that the basis for the delay was an investigation that was being conducted to determine whether disciplinary action of any kind should be brought. He further contends the underlying circumstances for the delay no longer existed after the NCIS investigation was closed in September 2013 and the Board “invalidated” the NJP in its final action on 29 February 2016. He contends the correction of his record, which included the removal of the NJP, PLOR, appeals, and all BOI documentation, “unsubstantiated” the basis for the delay. (2) Petitioner contends CNPC “re-notified” him on 8 June 2016 and “added” adverse information from 2003, “arbitrarily changing the underlying reasons for the delay after the basis for the delay was not substantiated.” He further contends the adverse information was added in order to justify its reasons for the extended delay and in violation of established laws and policies. (3) Petitioner contends an officer’s appointment may not be delayed more than 18 months after the date on which such officer would otherwise have been appointed. Any delay more than 18 months requires the approval of the President of the United States. Petitioner contends his promotion was delayed over four years, even after the “basis for the delay was voided and no longer existed.” (4) Petitioner contends he was not given notice or informed of the reasons for the delay of promotion before its imposition. (5) Petitioner contends the individual who extended and ratified the delay in his promotion was not designated to do so at the time of the delay. Specifically, he argues that CNPC was not authorized to extend or ratify the delay, which is required by law and regulation. Further, he asserts that it would be a “conflict of interest” for the same authority or office who delays a promotion to also ratify the same delay of promotion. (6) Petitioner contends the Navy initially did not process his delay in accordance with the governing instructions for LDOs. He further contends it took the Navy three years, and his persistence in telling the action officer, before the Navy realized the mistake. (7) Petitioner contends the Navy erroneously and unjustly used information pre-dating his commission during its review of his promotion. Specifically, he argues the Navy used a 2003 incident, from his enlisted time and prior to his commissioning, as a matter for consideration for promotion to LT. Petitioner states he was fully and adequately disciplined for the 2003 incident and his performance afterward, and to date, has been that of a “sustained superior performer.” Further, Petitioner contends the adverse information was already considered because he had already selected for promotion to LT and been placed on the AD AFQOL. (8) Petitioner contends it was error for the XO to start the delay of his promotion because regulation and instruction require the CO to start the delay. He further contends that CNPC erred in solely relying upon the XO’s email without any supporting rationale. (9) Petitioner contends the processing of his case was handled by individuals with conflicts of interest or individuals who exercised unlawful command influence. (10) Petitioner contends the CNO action memo did not fairly and fully address the factual and legal arguments in favor of his promotion. He asserts that the Navy should have addressed all his arguments, and alleges that the facts were distorted and that an investigation, that was not substantiated, was relied upon as factual, causing the SECNAV to lack substantial evidence by which to conclude Petitioner’s name should be removed from the AFQOL. Petitioner additionally contends that some of the points made in the CNO’s action memo to the SECNAV were “biased and not accurate,” and the memo is “misleading.” Further, specifically in regards to the FY18 removal, Petitioner contends “information from the NJP report was included in the promotion package for review by the CNO and the SECNAV.” (11) Petitioner contends the SECNAV is required to “state the grounds for denying my promotion” but he did not state or issue his own written brief statement; but only marked his signature next to the recommendation to “remove from promotion list.” He further contends the CNO action memo was not in compliance with SECNAV M-5216.5 which deprived him of a fair and unbiased decision because the SECNAV was only provided one option to sign. (12) Petitioner contends the violation of his due process rights warrants relief. Specifically, he contends he was improperly notified, denied the right to examine the evidence, denied the right to be heard, denied the right to neutral reviewers, and not provided adequate explanation for denial of his promotion in the form of a decisional document that articulates the reasons for the SECNAV’s decision. (13) Petitioner contends his protected communications to the () resulted in an email inquiry by and ultimately led to retaliation by the “JAGs or someone in the chop chain.” Specifically, he contends that in June 2016, soon after the inquired about his situation, he received the re-notification letter about the consideration of the 2003 NCIS investigation in regards to his promotion. (14) Petitioner contends the Commander, () endorsement letter of his promotion package provided a “self-contradictory” endorsement because Petitioner’s FITREP recommended him for advancement. He further contends the endorsement letter should only reflect his performance and conduct at the current command, and should not have been influenced by personal feelings or interpretations and previous information. (15) Petitioner contends that the Navy should exercise “balance and fairness” and apply the same standard in all cases. Specifically, he contends the same standard as applied in a similar case from Naval Air Station, , several Board for Correction of Naval Records (of which he provided redacted final action letters) cases, and the case of Rear Admiral , should be applied to his circumstances. (16) Petitioner contends his sustained superior performance, as documented in his FITREPs, awards, and the positive endorsements from his chain of command in support of his promotion to LT, warrant granting his requested relief. s. On 21 November 2018, Assistant Legal Counsel, CNPC (PERS 00J) provided an AO in response to the Board’s request for comments and recommendations. After the Board directed removal of Petitioner’s FITREP and expungement of “any material or entries referencing any alleged misconduct”, the Board requested an additional legal review. On 1 May 2019, PERS 00J provided an additional AO specifically stating the removal of Petitioner’s name from the FY13 AD LT AFQOL did not constitute an error or injustice in light of the Board’s decision to direct the removal of the adverse FITREP from Petitioner’s OMPF. PERS 00J further discussed “the NCIS reports constitute adverse or reportable information in Navy records and form a valid basis for the Secretary of the Navy to take into consideration in making the decision to approve the Petitioner’s removal.” t. In his rebuttal to enclosures (2) and (3), Petitioner submitted a statement dated 25 March 2019 which addressed the PERS 00J AO. The Board fully considered each of the rebuttal comments and discussion submitted by Petitioner in enclosure (4). u. In an AO dated 27 December 2019, Deputy Director, Administrative Law Division (Code 13), Office of the Judge Advocate General, reviewed, analyzed, and answered each of Petitioner’s contentions in detail at enclosure (5). Specifically, Code 13 determined there was nothing legally objectionable in Petitioner’s administrative file and provided the following: (1) properly issued two notifications to delay Petitioner’s promotion to the grade of LT in FY13. The 29 March 2013 notification delayed his promotion because of ongoing investigations, and on 8 June 2016, CNPC’s second notification did not change the underlying reasons for delay but notified petitioner that the SECNAV would consider additional adverse information when assessing his qualification for promotion. Further, the Navy did not change the underlying reasons for the delay in order to “justify its reasons for the extended delay.” (2) The 2003 NCIS ROI which substantiated Petitioner’s misuse of a government computer to view adult pornography, even though more than ten years old, constituted “adverse information” under Department of Defense regulations. The SECNAV was required to consider this adverse information “to ensure the officer remains qualified for promotion and continues to meet the exemplary conduct requirement.” (3) The untimeliness of resolution in Petitioner’s case is “legally unobjectionable because there is no right to appointment by operation of law.” (4) On 27 September 2013, properly signed a ratification and extension of delay for Petitioner with respect to the FY13 AD AFQOL in accordance with memorandum which delegated authority to ratify extensions of delay to . (5) The incorrect citation on Petitioner’s notice was harmless error. Specifically, the Navy’s initial incorrect listing of the governing instructions for LDOs, even though it took three years to correct, was harmless error. (6) There is no evidence in the administrative record to suggest a conflict of interest or unlawful command influence existed which impacted the processing of Petitioner’s case. Petitioner’s position is speculative and conclusory. (7) The CNO’s action memo presented the complete record to the SECNAV, referenced in the memo as “Tab B.” This record contained all materials submitted by Petitioner, which included all of the letters and enclosures thereto, and all arguments submitted in favor of his promotion. The conclusions in the action memo are accurate and supported factually by the administrative record. (8) It is the consistent practice in the Department of the Navy for the SECNAV to adopt the reasoning in the service chief’s action memo, which recommends the removal of an officer’s name from the promotion list, as the grounds for denying the officer’s promotion. SECNAV’s removal was in accordance with required instructions and effected through an endorsement signature on the action memo. The format of the action memo is legally unobjectionable. (9) With respect to Petitioner’s allegation that his second notification letter was in retaliation for his “protected communications” to the VCNO, there is no evidence in the administrative record to suggest retaliation by anyone involved in Petitioner’s case. (10) The Petitioner’s chain of command recommendation from was required by, and complied with, NAVADMIN 139/12 and MILPERSMAN Article 1420-070. (11) Asked specifically by the Board whether ’s delay of promotion or the SECNAV’s removal of Petitioner’s name from the promotion list was legally objectionable in light of the Board’s order to remove the adverse FITREP from Petitioner’s record, the AO stated that the actions taken by and the SECNAV were legally unobjectionable. Specifically, the AO states that “the presence of petitioner’s adverse FITREP in his record during ’s delay of petitioner’s promotion was, at worst, a harmless error.” Likewise, the SECNAV’s consideration of the adverse FITREP was “harmless error.” v. In his rebuttal to enclosure (5), Petitioner submitted a statement which addressed the analysis and answers and continues to contend the removal of his name from the promotion lists was “arbitrary and capricious, not based on substantial evidence, materially erroneous and contrary to the applicable law and the Navy’s own regulations.” The Board fully considered each of the rebuttal comments and discussion submitted by Petitioner in enclosure (6). CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board concurred with Code 13’s assessment that there was nothing legally objectionable in Petitioner’s administrative file, and although there was potentially “harmless error,” there was no material error in the handling of this case. However, noting it is still within the Board’s authority to assess whether there has been an injustice and balance the equities in this case, the Board concluded there is sufficient evidence an injustice has occurred which warrants relief. The Board noted the more than four years of elapsed time between 29 March 2013, the date of Petitioner’s initial notification of delay in his promotion to LT, and 28 June 2017, the date the SECNAV removed his name from the FY13 AD AFQOL. Further, the Board noted the Code 13 AO’s statement that “a promotion may not be delayed beyond 18 months” and its analysis that the “untimeliness of resolution in Petitioner’s case is legally unobjectionable because there is no right to appointment by operation of law.” The Board also noted there is nothing in the administrative record that explains the four-year delay, especially in light of the fact NCIS closed its investigation into the December 2012 allegations in September 2013. Additionally, the Board noted the injustices that had been corrected in Petitioner’s record through Board action beginning in February 2016 and ending in February 2019, which included removal of the 2013 NJP, PLOR, appeals, all BOI documentation, and the adverse FITREP. The Board further noted that both of CNO’s action memos quoted language from the adverse FITREP which had been specifically determined by the Board to be unjust and had required removal. Lastly, the Board noted that, outside of the misconduct from 2003, prior to his selection to LDO, and the alleged sexual assault in December 2012 which was not substantiated by NCIS, Petitioner’s record reflects superior performance despite the four years of ongoing stress of awaiting a determination of whether his name would be removed from the FY13 promotion list, which included two permanent change of station moves. As discussed above and relying upon Petitioner’s performance as documented in his FITREPs, awards, and the positive endorsements from his chain of command and other leaders he has served with, the Board determined it was in the interest of justice to grant Petitioner’s requested relief and allow him a “clean” slate when considered for promotion to LT. The Board noted that although it has the authority to direct the removal of all derogatory information within his OMPF, it does not have the authority to direct the removal of the 2003 or 2012 NCIS investigations, but trusts that, with the removal of the unjust actions taken in response to the 2012 NCIS investigation, Petitioner will receive fair and balanced consideration for promotion to the grade of LT. In view of the above, the Board determined it was in the interest of justice for Petitioner’s FY13 and FY18 failures of selection to be removed from his record. Further, the Board determined it was in the interest of justice for a FY13 AD O-3 Special Board (AFQOL) to be directed. If Petitioner is a FOS for the FY13 AD O-3 Special Board, then Petitioner would be allowed the authorized second look. The Board also noted Petitioner’s contention that if he had been appropriately promoted in FY13, he would have been in-zone (IZ) for consideration for selection to LCDR rather than being forced to retire on 30 April 2019. The Board concluded that, if promoted to LT, and, if he would have been IZ for a LCDR selection board, it would be in the interest of justice to direct a SSB to consider Petitioner for selection to LCDR. The Board, having determined relief should be granted as explained above, found the remaining contentions were moot and did not make determinations or specific comments. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner’s record be corrected by removing all documentation, to include the CNO action memos, pertaining to the delay of his FY13 promotion and removal of his name from the FY13 AD O-3 AFQOL and withholding of his FY18 promotion and removal of his name from the FY18 AD O-3 AFQOL. Petitioner’s record be corrected by removing the failures of selection incurred by the removal of his name from the FY13 and FY18 AD O-3 AFQOLs and all associated and related documentation. Petitioner’s record be corrected by removing all derogatory information associated with the 2012 sexual assault allegations and subsequent NCIS investigation and all follow-on administrative or disciplinary actions taken and/or recorded in Petitioner’s OMPF. An FY13 AD Navy O-3 Special Board (AFQOL) be convened, and if selected, and providing he is duly appointed to LT, then: (a) Assign the corresponding FY 13 date-of-rank; (b) Allow for all back pay and allowances; (c) The Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner’s records and make payment of any money that Petitioner may be entitled to; and (d) Determine when Petitioner would have been IZ for LCDR, and if the date is prior to his 30 April 2019 retirement, an SSB shall be convened to consider Petitioner for selection to promotion to LCDR. If removed from, or not identified as fully qualified for, the FY13 AD Navy O-3 AFQOL, then an FY14 AD Navy O-3 Special Board (AFQOL) shall be convened, and if selected, and providing he is duly appointed to LT, then: (a) Assign the corresponding date-of-rank; (b) Allow for all back pay and allowances; (c) The Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner’s records and make payment of any money that Petitioner may be entitled to; and (d) Determine when Petitioner would have been IZ for LCDR, and if the date is prior to his 30 April 2019 retirement, an SSB shall be convened to consider Petitioner for selection to promotion to LCDR. If removed from, or not identified as fully qualified for, the FY14 Active Duty Navy O-3 Special Board (AFQOL), Petitioner shall be continued on Active Duty until his retirement date of 30 April 2019. Upon completion of the action directed above, Petitioner’s naval record be corrected by taking appropriate action in light of the results of the Special Board. If appropriate, Petitioner’s naval record should be corrected by voiding the Certificate of Release or Discharge from Active Duty (DD Form 214) signed by Petitioner on 14 April 2019, removing it from his record, and issuing a new DD Form 214 based on the action taken. Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, that no such entries or material be added to the record in the future. This includes all information systems/data base entries which reference and/or discuss the material being expunged. That, upon request, the Department of Veterans Affairs be informed that Petitioner's original application was received by the Board on 10 August 2017. 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. The foregoing action of the Board is submitted for your review and action. 7/14/2020 Reviewed and Approved/