Docket No: 5174-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) NAVPERS 1626/7 Report and Disposition of Offenses of 29 Nov 17 (3) CO, Command ltr 5 Dec 17 (4) Navy Enlisted Classification (NEC) Change Request of 27 Dec 17 (5) Fitness report for the reporting period 16 Sep 17 to 27 Dec 17 (6) Fitness report for the reporting period 28 Dec 17 to 30 Apr 18 (7) Assistant Legal Counsel to Commander Navy Personnel Command (PERS-00J) ltr of 3 Mar 20 1. Pursuant to the provisions of the reference, Petitioner, an enlisted service 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 Report and Disposition of Offenses documenting his 18 December 2017 non-judicial punishment (NJP) and comments regarding his NJP from his fitness report for the reporting period 28 December 2017 to 30 April 2018. Petitioner also requests reinstatement of his , and Instructor Navy Enlisted Classifications (NECs). 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 14 July 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 he was punished for adhering to competent medical advice, the circumstances of his alleged misconduct was not adequately investigated, exculpatory evidence was omitted, and he did not have an opportunity to present a defense. Petitioner asserts that on 2 November 2017, while enrolled in the Defense Force Jungle Warfare Instructor Course ( Instructor Course), he contracted a fever and cellulitis on his hips, buttocks, and groin area. As a result, he was to be sick in quarters (SIQ) for 48 hours. He also asserts that the course officer-in-charge (OIC) indicated that he would be dropped from the course if he did not return. Petitioner was subsequently dropped from the course but remained in to observe the course. Petitioner reasoned that remaining to observe the course would be productive, worthwhile, and a proper course of action. Petitioner also contends that his fitness report for the reporting period 28 December 2017 to 30 April 2018 erroneously documented his NJP. Petitioner argues that his NJP did not occur during that reporting period, and that the NJP was documented on his previous report. Lastly, Petitioner contends that his commanding officer erroneously removed his NECs before convening a review board. b. In enclosure (2), Petitioner’s Report and Disposition of Offenses, Petitioner was charged with violations of Article 92, Uniform Code of Military Justice (UCMJ) for willfully failing to continue training at the Instructor Course, willfully failing to notify his chain of command of his medical status and that he discontinued the course, and willfully failing to make arrangements to return to upon discontinuing the course. Petitioner was also charged with violation of Article 107, UCMJ for making false official statements. Specifically, statements that “3 PAX green ,” “we are moving to today,” “We will be retuning this afternoon to city,” “The course ends on the 18th of November for international students,” and “18th cleanup camp. 19th RTB to . 20th depart.” Petitioner was properly notified of his Article 31 UCMJ rights, he was afforded the opportunity to consult with a military lawyer, and afforded the right to appeal the NJP, and he chose not to submit an appeal. c. In enclosure (3), Petitioner’s commanding officer (CO) provided notification that a NEC Review Board would be convened to evaluate Petitioner’s operational ability, ethics, judgment, potential, and motivation for continued service as a Navy SEAL. d. In enclosure (4), a NEC Change Request, Petitioner’s CO requested that PERS-324 remove Petitioner’s 5326 Combat Swimmer SEAL, 822A JTAC, and 805A Instructor NECs. e. In enclosure (5), Petitioner’s fitness report for the reporting period 16 September 2017 to 27 December 2017, Petitioner’s reporting senior (RS) submitted a Special/Regular report noting Petitioner’s NJP, misconduct, and that he was not recommended for retention or advancement. f. In enclosure (6), Petitioner’s fitness report for the reporting period 28 December 2017 to 30 April 2018, Petitioner’s RS submitted a Detachment of Individual/Regular report noting that Petitioner received NJP on December 2017. g. The advisory opinion (AO) from PERS-00J, enclosure (7), recommended denying Petitioner’s request to remove his NJP. The AO noted that Petitioner was not participating in the Instructor Course but chose to remain in to “audit” the class. The AO also noted that Petitioner failed to notify his command that he was injured, had been dropped from the course, and that he chose to remain in to audit the course. The AO determined that Petitioner was given due process, and his NJP was handled in conformance with Navy instructions. The AO noted that Petitioner’s fitness report for the reporting period 16 September 2017 to 27 December 2017 was properly issued, however, PERS-00J found no record of Petitioner’s contested fitness report in his official military personnel file (OMPF). The AO remarked that when Petitioner’s CO requested the removal of his NECs, a review board was not required, thus his CO’s actions were legally sufficient to remove Petitioner’s NECs. The AO recommended authorizing the convening of a NEC review board and reconsideration by the Commanding Officer, (). 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 AO that Petitioner’s NJP should remain in his OMPF. In this regard, the Board noted that Petitioner was not participating in the Instructor Course, failed to notify his command that he was injured and had been dropped from the course, and without authorization Petitioner remained in to “audit” the course. The Board determined that Petitioner’s CO had sufficient documented communication and travel arrangements as evidence to find that he violated Articles 92 and 107 of the UCMJ. Moreover, the Board also determined that Petitioner’s NJP was conducted consistent with the Manual for Courts-Martial and Navy instruction. The Board thus concluded that Petitioner’s NJP and any documentation related to his NJP shall remain in his record. Concerning Petitioner’s request to remove his fitness report for the reporting period 28 December 2017 to 30 April 2018, the Board determined that any mention of Petitioner’s NJP during the contested reporting period is in error and should be removed, however, the Board found no evidence of the fitness report in Petitioner’s OMPF. The Board concluded that based upon the lack of documentation in Petitioner’s record no action is required. Concerning Petitioner’s request to reinstate his NECs, the Board noted enclosure (3), Petitioner’s notification of an NEC Review Board, however, the Board found no evidence of the Review Board’s determination. The Board substantially concurred with the AO that, although Petitioner’s CO was authorized to remove his NECs, a NEC Review Board shall be convened for reconsideration by the CO, . RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by convening an NEC Review Board to make a recommendation for the reinstatement of Petitioner’s 5326 Combat Swimmer SEAL, 822A Joint Terminal Attack Controller, and 805A Instructor NECs. Any material or entries inconsistent with or relating to the Board’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.