DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6431-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO USN, (RET) Ref: (a) Title 10 U.S.C. § 1552 (b) SECNAVINST 1920.6C (c) Title 10 U.S.C. § 1370 (d) OPNAVINST 6110.IJ Encl: (1) DD Form 149 w/attachments (2) Statement of Facts of 25 Oct 14 (3) Preliminary Inquiry of 30 Oct 14 (4) Board of Inquiry Report of 11 Jun 15 (5) ltr of 13 Aug 15 (6) OPNA V (N3N5B) email of 19 Aug 15 (7) Commander, NPC and ASN ltr of 4 Apr 16 (8) Advisory Opinion, Office of Legal Counsel (PERS-00J) ltr of 21 Nov 19 (9) Response to Advi ory Opinion of 2 Jan 20 1. Pursuant to the provisions of reference (a), Petitioner, a retired commissioned officer of the Navy, filed enclo ure (I) with the Board for Correction of aval Records (Board), requesting that his record be corrected by changing his retirement grade to Captain (CAPT/O-6) and correcting his DD Form 214 to reflect the grade CAPT. 2. A three-member panel of the Board, sitting in executive session, reviewed Petitioner's allegation of error and injustice on 1 eptember 2020 and, pursuant to its regulations, determined that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Documentary material considered by the Board consisted of the enclosure , 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 as follows : a. On 25 October 2014, Petitioner's commanding officer (CO) furnished enclosure (2), a statement noting that he was notified that during the routing of Petitioners' end of tour award, the command Physical Readiness Test (PRT) Coordinator conducted a routine check of Petitioner's Physical Readiness Information Management ystem (PRIMS) record. The PRT Coordinator noted that, with the exception of the most recent cycle 1-2014 PRT, there was no indication of any PRTs completed or attempted by Petitioner in the past five years. When Petitioner's CO questioned him about his PRTs, Petitioner admitted that he had not taken a PRT in quite some time. Petitioner also acknowledged that he signed fitness reports knowing they were not accurate. b. A 30 October 2014 Preliminary Inquiry (Pl), enclosure (3), found that Petitioner's command failed to ensure that he was accounted for in the PRIMS and in compliance with the Navy's Physical Readiness Program (PRP) from January 2009 through May 2014. The PI opined that had the staff not checked Petitioner's PRIMS status during the end of tour award processing, it is po sible that the previous 10 PF A no-hows would have continued to go unnoticed. The PI noted that Petitioner should not have been eligible for promotion to the rank of Captain based on his PFA failures that occurred prior to his 0-6 promotion board. The PI recommended that Petitioner be issued a Letter of Notification for each PFA failure for cycle 2­2011 through cycle 2-2013, his PRIMS record be annotated as unauthorized participation "UA" for PFA cycle 1-2009 through 2-2013, and that Petitioner be immediately processed for administrative separation. c. On 11 June 2015, enclosure (4), Petitioner was the subject of a Board of Inquiry (BOI). Petitioner's BOI unanimously voted that the preponderance of the evidence upported misconduct. pecifically, violation of Article 92, Uniform Code of Military Justice ( CMJ), (Failure to obey order or regulation) by purposefully not participating in semi-annual PFAs between January 2009 and May 2014, and Article 107, CMJ (Fal e official statements) when Petitioner reported false information in Block 20 on three separate fitness reports by annotating "Ps" for passing multiple PRT/BCA cycles when he had not attempted them. Petitioner's BOI unanimously recommended eparation from the Naval Service for misconduct, with an Honorable characterization of service in accordance with reference (b). The BOI members also included a hand written recommendation that Petitioner be retired in the pay grade 0-6 with six months of honorable service in grade. d. On 13 August 2015, enclosure (5), Petitioner submitted a waiver for retirement in the pay grade 0-6. e. On 19 August 2015, enclosure (6), in e-mail correspondence from the Office of the Chief of Naval Operations (OP AV 3 5B), Petitioner was advised that upon review of reference (b) an officer may retire in the grade that he/she has honorably served for at least 6 months. However, this presumes that the officer has the requisite two-years in grade at the time of the retirement in order to actually retire at such grade. The e-mail further advised that, although Petitioner did not have two-years in grade as an 0-6 at the time of the BOI, their intent is to let him complete the remaining months needed to reach the two-year requirement and allow him to retire as an 0-6. f. On 4 April 2016, enclosure (7), the Chief of Naval Personnel (CHNAVPERS) recommended to the Assistant Secretary of the avy ( SN) (M&RA) that Petitioner be retired from the naval service in the pay grade 0-5 with an Honorable characterization of service, separation code of SNC (unacceptable conduct), and recoup community managed bonuses, as applicable. The CHNAVPERS noted that Petitioner's retirement grade determination was routed via CHNAVPERS because Petitioner is not eligible to retire in the pay grade 0-6. CHNA VPERS also noted that at the time of the BO1, Petitioner had served one-year and nine months as an 0-6 and the BO1 had the option to retire him as an 0-5 or 0-4, because Petitioner was not eligible for retirement in pay grade 0-6. Moreover, CHNA VPERS made a case that, allowing Petitioner to retire in pay grade 0-6 would be inappropriate and unfair as it would result in him being treated the same as those officers who had not been subject to a retirement grade determination. g. On 25 April 2016, enclosure (7), the ASN (M&RA) determined that Petitioner's retirement pay grade shall be 0-5. h. Petitioner contends that he served in the pay grade 0-6 for two-years and ten-months before retirement, he was eligible to receive a time-in grade waiver after two years, and that his waiver was denied by the Secretary of the Navy (SECNA V), although his waiver was positively endorsed by his chain of command. Petitioner also contends that his BO1 members determined that he should be separated with an honorable discharge and because he was retirement eligible, the BO1 members recommended that he be retired in the pay grade (0-6). Petitioner claims that his detailer told him that Navy Personnel Command PC) was going to permit him to retire as an 0-6, and it was represented to his military counsel and the senior member of the Board that he was going to be permitted to retire as an 0-6. Petitioner purports that the BO1 may have retained him if they had known he would not be permitted to retire as an 0-6. Petitioner further contends that his reporting seniors were responsible for reviewing the data on his fitness report for accuracy, and it was the intent of the BO1 for him to retire as an 0-6, however, NPC systematically stripped the BO1 of its decision and inserted their own opinion without affording him another hearing. See enclosure ( 1) i. The AO, enclosure (8), recommended that Petitioner's request be denied. The AO noted that the BO1 found that Petitioner violated Article 92 and Article 107, UCMJ. The AO also noted that the BO1 modified the findings worksheet by hand, including a recommendation that Petitioner be retired in the pay grade 0-6. The AO determined that the BOI's recommendation was improper because Petitioner was not eligible for retirement as an 0-6. Moreover, the underlying misconduct involved Petitioner' s failure to complete 10 PFAs and falsely certifying that he completed and passed several of them. Additionally, Petitioner admitted that he did not complete the PFAs, he falsely certified that he completed them, and that he should be held accountable for his actions. The AO noted, too, that Petitioner included correspondence indicating that retirement as an 0-6 may happen or was likely to happen. However, the AO noted that reference (c) provides that the Secretary of the military department concerned ultimately determines the highest grade in which a member served satisfactorily on active duty for retirement purposes. Accordingly, the ASN (M&RA), on behalf of the SECNA V, determined that the highest grade Petitioner served satisfactorily was 0-5. As referenced in the PI, Petitioner was not eligible for promotion to 0-6 due to not completing PFAs as required by reference (d). Moreover, Petitioner had not completed two-year's time-in-grade as an 0-6, as required, at the time of his BO1. The AO concluded that Petitioner was expected to follow every regulation, to the letter as a commissioned officer. CONCLUSION After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. The Board substantially concurred with the AO that Petitioner's retired grade of 0-5 shall remain unchanged. In this regard, the Board noted that Petitioner failed to participate in I0 PFA's without authorization to be a non-participant, Petitioner admitted that he signed fitness reports acknowledging that he passed his PFAs knowing that the information was incorrect, and intentionally omitted PFA information to avoid falsifying his fitness reports. The Board also noted that Petitioner's BOI unanimously voted that the preponderance of the evidence supports that Petitioner violated Article 92 and Article 107, UCMJ. Concerning Petitioner's contention that it was the BOI's intent that he retire as an 0-6, the Board noted that pursuant to Title IO U.S.C. § 1182, the BOI is convened to receive evidence and make findings and recommendation as to whether an officer should be retained on active duty and determined that the recommendation of his BOI was in fact only a recommendation. Moreover, the Board determined that the BOI's hand written retirement grade recommendation was in error because Petitioner did not have the required time in grade to be eligible for retirement as an 0-6. The Board further noted that pursuant to reference (c), a commissioned officer will be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned. The Board thus determined that the ASN (M&RA) by authority of the SECNA V determines the retirement grade when a service member is subject to a grade determination and the ASN (M&RA) is not beholden to the recommendations of a BOI. Concerning Petitioner's contentions that he was not afforded another hearing and his reporting officials were responsible for reviewing the data on his fitness report for accuracy, the Board determined that Petitioner was not entitled to a second hearing and although Petitioner's reporting officials did not verify his PFA data, it was ultimately the Petitioner's responsibility to ensure that he either participated in each PFA or obtained the required approval as a non­participant in accordance with reference ( d). The Board thus concluded that there is no probable material error or injustice warranting corrective action. RECOMMENDATION In view of the above, the Board recommends denying relief. 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. 11/5/2020 Executive Director PRINCIPAL DEPUTY. ASSISTANT SECRETARY OF THE NAVY (M&RA) DECISION: (Performing the Duties of the Assistant Secretary of the Navy (M&RA) Reviewed and Approved Board Recommendation Deny Relief)