Docket No: 4271-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 (2) Charge Sheet of 1 Feb 17 (3) Memorandum of Pretrial Agreement 15 Mar 17 (4) NAVPERS 1626/7 Report and Disposition of Offenses of 20 Mar 17 (5) Board of Inquiry of 26 Jan 19 (6) Office of Legal Counsel (PERS-00J) ltr of 18 May 20 (7) NPC ltr 1610 PERS-32 of 23 Apr 20 (8) Fitness report for the reporting period 1 Feb 16 to 10 May 16 (9) Supplemental fitness report for the reporting period 1 Feb 16 to 10 May 16 1. Pursuant to the reference, Petitioner, a commissioned officer of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting that his record be corrected by removing his 20 March 2017 Offenses and Punishment page documenting his non-judicial punishment (NJP) and all related derogatory material. Petitioner also request removal of his revised fitness report for the reporting period 1 February 2016 to 10 May 2016 and Supplemental Fitness Report letter dated 7 February 2017. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 9 June 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 of record pertaining to Petitioner's allegations of error and injustice, found that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board made the following findings: a. Petitioner contends that his NJP resulted from charges that were preferred based on a flawed and incomplete investigation. Petitioner asserts that he pled guilty to violations of Article 92 and Article 93, Uniform Code of Military Justice (UCMJ) as a strategic decision to resolve the criminal case against him and not because he actually believed he was guilty. Petitioner also contends that his original fitness report for the reporting period 1 February 2016 to 10 May 2016 was strong in comparison to his revised fitness report. Petitioner asserts that the justification for revising his report was based upon the results of an investigation and preferred charges. Petitioner argues that his Board of Inquiry (BOI) unanimously found that he did not commit misconduct, thus any reference to his underlying allegations of misconduct is inappropriate. b. In enclosure (2), Petitioner was charged with violations of Article 92, UCMJ for willful dereliction of duty, Article 93, UCMJ for maltreatment, and Article 107, UCMJ for making a false official statement. c. In enclosure (3), Petitioner’s pretrial agreement, he agreed to accept NJP, agreed to cooperate with the investigation against the other officer accused of misconduct, and he pled guilty to Article 92, UCMJ specifications and Article 93, UCMJ specifications. d. In enclosure (4), Petitioner’s report and disposition of offense(s), Petitioner received NJP for violation of Article 92, UCMJ for willfully enabling and failing to report the hazing and maltreatment of a LTJG, and for violation of Article 93, UCMJ for maltreatment of a LTJG by engaging in a continuous pattern of verbal and emotional abuse, by negatively mischaracterizing Petitioner was required to show cause. e. In enclosure (5), Petitioner’s BOI report, the members of his BOI unanimously found that the preponderance of evidence did not support the specified reasons to warrant separation for cause. f. The advisory opinion (AO) from PERS-00J, enclosure (6), recommended disapproving Petitioner’s request to remove his NJP. The AO noted that Petitioner accepted NJP, pled guilty, admitted his offenses to an admiral, and he later admitted his misconduct in several official documents to mitigate his punishment. The AO explained that Petitioner mistakes the purpose between NJP and administrative processing. The AO clarified that NJP is a method for maintaining good order, discipline and for the imposition of punishment. A BOI is not a de novo appeal of his NJP, the NJP authority is not subject to the determination of a BOI, and the fact that Petitioner admitted his guilt is a matter of record. The determination to retain Petitioner does not negate the properly administered and independent NJP process. g. The AO from PERS-32, enclosure (7) recommended removing enclosure (8), Petitioner’s revised fitness report and enclosure (9), Petitioner’s Letter Supplement. The AO noted that Petitioner’s original fitness report was processed to Petitioner’s official military personnel file (OMPF) and Petitioner’s revised report was also received and processed to his OMPF. The AO explained that Petitioner’s revised report is considered declining. The AO concluded that the revised report violated BUPERSINST 1610.10D, the Navy Evaluation Manual (EVALMAN) for a declining report because Petitioner’s reporting senior (RS) did not provide the required explanatory comment to justify the decline, and his RS failed to comment on the information that mandated the revised report. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial corrective action. The Board substantially concurred with the BUPERS­00J AO that Petitioner’s NJP should remain in his OMPF. In this regard, the Board noted that Petitioner’s admitted to his misconduct, signed a pre-trial agreement, accepted NJP, pled guilty to violating Articles 92 and 93 UCMJ, and his admission of guilt is a matter of record. The Board also noted Petitioner’s BOI and determined that Petitioner’s contention is misguided, NJP is a statutory mechanism of punishment provided to assists commanding officer in maintaining good order and discipline, while BOI’s are purely administrative, accordingly the two process are not binding on each other. TheBoard concluded that Petitioner’s NJP and documentation related to his NJP shall remain in his record. Concerning Petitioner’s request to remove his fitness report for the reporting period 1 February 2016 to 10 May 2016 and his 7 February 2017 Supplemental Fitness Report letter, the Board substantially concurred with the PERS-32 AO recommendation to remove Petitioner’s fitness report and supplemental letter. The Board noted that pursuant to the EVALMAN Petitioner’s revised fitness report is considered a declining report. The Board also noted that in violation of the EVALMAN that Petitioner’s RS failed to provide justification for the revised declining fitness report and his RS failed to comment on the material that mandated Petitioner’s revised fitness report. The Board thus concluded that Petitioner’s revised fitness report and Supplemental Fitness Report letter shall be removed. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by removing his revised fitness report for the reporting period 1 February 2016 to 10 May 2016. Petitioner’s naval record be corrected by removing his 7 February 2017 Supplemental Fitness Report letter. Any material or entries inconsistent with or relating to theBoard’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems/database entries which reference or discuss the material being expunged. No other changes 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-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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.