DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 423-19 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) MILPERSMAN 1611-020 (Officer Detachment for Cause) (c) BUPERSINST 1610.lOD (EVALMAN) (d) 10 u.s.c. § 632 (e) 10 U.S.C. § 628 (f) SECNAVINST 1420.18 (g) ASN (M&RA) memo of 28 Nov 17 "Delegation of Authority to the Board for Correction of Naval Records (BCNR) to Direct the Convening of a Special Selection Board (SSB), Supplemental All-Fully-Qualified Officers List (AFQOL), and Special AFQOL" Encl: (1) DD Form 149 w/attachments (2) Fitness report and counseling record for the reporting period 4 Feb 17 to 31 Jan 18 (3) Fitness report and counseling record for the reporting period 5 May 18 to 16 Nov 18 1. Pursuant to reference (a), Petitioner, a commissioned officer in the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting the following corrections be made to his naval record: • removal of his detachment for cause (DFC) documents, and all material based on, related to, or impacted by his DFC; • removal of his board of inquiry (BOI} documents; • a Fiscal Year (FY) 2019 Active-Duty Navy 04 Line Special Selection Board (SSB) be convened to consider him for promotion; • his FY 2019 and FY 2020 failures of selection (F0Ss) be removed; and • if he is permanently separated on 1 March 2020, that he be reinstated on active duty. 2. The Board reviewed Petitioner's allegations of error and injustice on 25 February 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, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts ofrecord 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 regulation within the Department of the Navy. b. Petitioner asserts that removal of his DFC and related documents from his record are essential to a substantially accurate, complete, and fair portrayal of his career, and he contends that: • his DFC was not in compliance with reference (b ); • a 30 August 2018 BOI found that the preponderance of the evidence did not find substandard performance and recommended that he be retained in the naval service; • enclosure (2), his fitness report for the reporting period 4 February 2017 to 31 January 2018, is not in compliance with reference (c); • enclosure (3), his fitness report for the reporting period 5 May 2018 to 16 November 2018, was missing from his official military personnel file (OMPF) until after the FY 2020 promotion selection board convened; • his Officer Summary Record (OSR) reflected the wrong unit identification code (UIC) when the FY 2020 promotion selection board convened, causing an erroneous display of his current duty station and billet; • the FY 2019 and FY 2020 promotion selection boards did not have an accurate record for review when he failed selection to 04; and • a duplicate fitness report for the reporting period 31 October 2017 to 4 May 2018 was inserted into his OMPF, causing an erroneous display of performance traits, averages, and promotion recommendations on his PSR. c. Petitioner was joined onboard the in April 2017. On 18 September 2017, Petitioner was issued a Letter oflnstruction (LOI). On 30 October 2017, Petitioner's commanding officer (CO) requested that Petitioner be detached for cause by reason of unsatisfactory performance of duty over an extended period of time. That same date, Petitioner acknowledged receipt of the DFC request and his right to submit a written statement. On 11 November 2017 Petitioner submitted a written statement in response to the DFC request, contesting details of the LOI and DFC letters. He also provided a summary of events during his tour, and his traits history and 03 fitness reports. Petitioner's CO endorsed and forwarded the DFC package, via the chain of command, to the Navy Personnel Command (PERS-834). The due to substandard performance of duty, efficiency, and leadership. d. Petitioner was issued enclosure (2), a Periodic/Regular fitness report for the reporting period 4 February 2017 to 31 January 2018. A review of the fitness report conducted by the Navy Personnel Command (PERS-32) on 24 February 2020 determined that Block 41 (comments on performance) contained adverse comments, and, therefore, pursuant to reference (c), the fitness report required Petitioner's signature. Block 46 (signature of individual evaluated) was not signed by Petitioner and was marked "certified copy provided." Additionally, PERS-32 noted that, because the fitness report had no adverse performance traits or promotion recommendation, and due to the volume of fitness reports received by PERS-32, examiners did not read Block 41 of the report. Therefore, Petitioner's fitness report ending 31 January 2018 was mistakenly processed to Petitioner's OMPF as a valid report. e. On 19 April 2018, Petitioner submitted to PERS-32, via his reporting senior (RS), a "statement for the record," alleging, in part, that "[t]he content and handling of this report suggests that [he was] not being provided with a fair and impartial account of [his] performance during this period." In his statement, Petitioner also noted that he was constantly available for review and signing of the fitness report. On 30 April 2018, Petitioner filed an Article 138, Uniform Code of Military Justice (UCMJ), Complaint of Wrongs, alleging that his fitness report ending 31 January 2018 ''was prepared and endorsed not in accordance with my rights under [BUPERSINST 1610.IOD] and is now part ofmy OMPF." Petitioner also alleged that his 19 April 2018 statement for the record was not endorsed and forwarded to PERS-32 within ten days for inclusion with his fitness report. In his complaint, Petitioner requested a memorandum from his RS at least 10 days prior to the convening of the promotion selection board, acknowledging the error in the fitness report. On 16 July 2018, Petitioner submitted a second Article 13 8, UCMJ, Complaint of Wrongs, alleging that his 30 April 2018 complaint was not handled in accordance with policy, that "[t]his pattern of errors, inaccuracies, and distortions further suggest that I have not been provided with a fair and impartial account of my performance, as evaluated by [my RS]," and that his rights were being disregarded. Petitioner were minor administrative errors in the processing of your Fitness Report. However, considering the action taken already by [Petitioner's RS] and the nature of the errors, I find that the errors create no actual prejudice to you" and that "[t]he processing errors in your Fitness Report indicate inattention to detail ... rather than targeted or unfair treatment of you." f. On 14 May 2018, the Deputy Chief of Naval Personnel reviewed and approved Petitioner's DFC, and Petitioner was notified of his right to submit a statement in response. g. The FY 2019 Active-Duty Navy 04 Line Promotion Selection Board convened on 21 May 2018. Petitioner failed selection and incurred his first FOS. h. Petitioner's 30 August 2018 BOI unanimously determined that the preponderance of the evidence did not support substandard performance due to failure to demonstrate acceptable qualities ofleadership required of an officer in Petitioner's grade, or that Petitioner failed to conform to prescribed standards of military deportment. By a 2-to-1 vote, the BOI also determined that the preponderance of evidence did not support substandard performance due to Petitioner's failure to properly discharge duties expected of officers of his grade and experience. The BOI recommended that Petitioner be retained on active duty in the Navy. On 17 September 2018, PERS-834 advised Petitioner that he had been retained in the Navy. i. Petitioner was issued enclosure (3), a Detachment of individual/Concurrent fitness report for the reporting period 5 May 2018 to 16 November 2018. PERS-32 rejected the report on two occasions due to errors, and, as a result, the report was not entered in Petitioner's OMPF until after the FY 2020 board convened. Petitioner contends that the absence of this report negatively impacted his competitiveness before the FY 2020 promotion selection board. j. On 20 May 2019, the FY 2020 Active-Duty Navy 04 Line Promotion Selection Board convened. Petitioner failed selection and incurred his second FOS. Pursuant to the provisions of reference (d), Petitioner shall be honorably discharged no later than 1 March 2020. k. References (e) and (f) prescribe the rules and procedures for the convening and conduct of SSBs. Reference (g) delegated authority to the BCNR to direct the Chief of Naval Personnel (CNP) to convene a SSB, providing that the BCNR fully complies with the requirements and restrictions set forth in references (e) and (f). MAJORITY CONCLUSION Upon review and consideration of all the evidence of record, and in light of the requirements of references (b), (c), and (d), the majority finds the existence of an injustice warranting partial relief. In this regard, the majority noted that there is no evidence in the record, and Petitioner did not sufficiently demonstrate, that his DFC was not in compliance with reference (b ). The majority thus concluded that, Petitioner's DFC and BOI were not in error or unjust, that the material relating to these actions were properly inserted in Petitioner's OMPF, and that they shall remain in his OMPF. The majority detennined that enclosure (2), Petitioner's fitness report for the reporting period 4 February 2017 to 31 January 2018, may have had minor administrative errors, as noted in the 21 August 2018 Commander, , letter to Petitioner. Despite PERS­32' s detennination that the report was adverse and was erroneously entered into Petitioner's OMPF, the majority detennined that the fitness report was not adverse, and thus did not require Petitioner's signature prior to inclusion in his OMPF. The majority concluded that the report is in compliance with reference (c), and that it shall remain in Petitioner's OMPF. The majority detennined that enclosure (3), Petitioner's fitness report for the reporting period 5 May 2018 to 16 November 2018, was missing from Petitioner's OMPF until after the FY 2020 promotion selection board convened, and that Petitioner's OSR reflected the wrong UIC, causing an erroneous display of his current duty station and billet. The majority thus concluded that Petitioner's FY 2019 FOS shall be removed, and that his 1 March 2020 mandatory separation date shall also be removed. The majority also detennined that Petitioner exercised reasonable diligence in correcting the errors, and concluded that a FY 2019 Active-Duty Navy 04 Line SSB shall be convened. The majority concluded, however, that removal of Petitioner's FY 2020 FOS is not warranted. In this regard, the majority did not find that the FY 2020 promotion selection board did not have an accurate record for review when Petitioner failed selection to 04, or that the duplicate fitness report in Petitioner's OMPF was a material error. MAJORITY RECOMMENDATION In view of the above, the majority directs the following corrective action. Petitioner's naval record be corrected by removing his FY 2019 Active-Duty Navy 04 Line failure of selection. Petitioner's naval record be corrected by convening a FY 2019 Active-Duty Navy 04 Line SSB No further corrective action be taken. MINORITY CONCLUSION Upon review and consideration of all the evidence ofrecord, the minority finds the existence of an injustice warranting partial relief. In this regard, the minority noted that there is no evidence in the record, and Petitioner did not sufficiently demonstrate, that his DFC was not in compliance with reference (b). The minority thus concluded that, Petitioner's DFC, and BOI were not in error or unjust, and that, therefore, the material relating to these actions were properly inserted in Petitioner's OMPF, and that they shall remain in his OMPF. The minority determined that enclosure (2), Petitioner's fitness report for the reporting period 4 February 2017 to 31 January 2018, may have had minor administrative errors, as noted in the 21 August 2018 Commander, , letter to Petitioner. Despite PERS-32's determination that the report was adverse and was erroneously entered into Petitioner's OMPF, the minority determined that the fitness report was not adverse, and that, therefore, it did not require Petitioner's signature prior to inclusion in his OMPF. The minority thus concluded that the report is in compliance with reference (c), and that it shall remain in Petitioner's OMPF. The minority determined that enclosure (3), Petitioner's fitness report for the reporting period 5 May 2018 to 16 November 2018, was missing from Petitioner's OMPF until after the FY 2020 promotion selection board convened, and that Petitioner's OSR reflected the wrong UIC when the FY 2020 promotion selection board convened, causing an erroneous display of his current duty station and billet. However, in view of the foregoing, the minority did not find that the FY 2019 and FY 2020 promotion selection boards did not have an accurate record for review when Petitioner failed selection to 04, and found that the minor errors noted were not material and would not have changed the outcome of the promotion selection board's decision. MINORITY RECOMMENDATION No relief be granted. EXECUTIVE DIRECTOR CONCLUSION Taking into account the findings of the Board, the Executive Director found that partial corrective action is nevertheless warranted in Petitioner's case. In this regard, the Executive Director noted that there is no evidence in the record, and Petitioner did not sufficiently demonstrate, that his DFC was not in compliance with reference (b ). The Executive Director thus concluded that Petitioner's DFC and BOI were not in error or unjust, and that the material relating to these actions were properly inserted in Petitioner's OMPF, and that they shall remain in his OMPF. The Executive Director, noting the majority's determination that enclosure (2), Petitioner's fitness report for the reporting period 4 February 2017 to 31 January 2018, may have had minor administrative errors, concurred with PERS-32 that the fitness report is adverse, and that, pursuant to reference (c), Petitioner was required to sign the report and be afforded the opportunity to submit a statement prior to its inclusion in his OMPF. The Executive Director determined, therefore, that Petitioner was denied his procedural right, although he was available for signature and made several attempts to correct the error through his Article 138, UCMJ, complaints. The Executive Director, however, determined that the only material error in the report is the sentence "Unfortunately, [Petitioner] had difficulty prioritizing tasks and promoting a culture built on teamwork and trust, which resulted in his removal as Engineer Officer." The Executive Director thus concluded that removal of this sentence is warranted, and that, after redaction, the report will be in compliance with reference (c) and shall remain in Petitioner's OMPF. The Executive Director determined that enclosure (3), Petitioner's fitness report for the reporting period 5 May 2018 to 16 November 2018, was missing from Petitioner's OMPF until after the FY 2020 promotion selection board convened, and that Petitioner's OSR reflected the wrong UIC, causing an erroneous display of his current duty station and billet. Although the Executive Director did not consider the inclusion of a duplicate fitness report in Petitioner's OMPF as a material error, the other errors were substantial, and for these reasons, the Executive Director concluded that Petitioner's FY 2019 and FY 2020 FOSs shall be removed, and that his 1 March 2020 mandatory separation date shall also be removed. The Executive Director also determined that Petitioner exercised reasonable diligence in correcting the errors, and concluded that a FY 2019 Active-Duty Navy 04 Line SSB shall be convened. EXECUTIVE DIRECTOR RECOMMENDATION In view of the above, the Executive Director recommends the following corrective action. Petitioner's naval record be corrected by modifying enclosure (2) by redacting the sentence "Unfortunately, [Petitioner] had difficulty prioritizing tasks and promoting a culture built on teamwork and trust, which resulted in his removal as Engineer Officer." Petitioner's naval record be corrected by removing his FY 2019 Active-Duty Navy 04 Line failure of selection. Petitioner's naval record be corrected by removing his FY 2020 Active-Duty Navy 04 Line failure of selection. Petitioner's naval record be corrected by convening a FY 2019 Active-Duty Navy 04 Line SSB. No further corrective action be taken. 4. Pursuant to Section 6(c) of the revised Procedures of the Board (32 Code of Federal Regulations, Section 723.6(c)), 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.