Docket No: 8675-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MPN 1910-164 (c)OPNAVINST 6110.1 (series) (d) DoD Instruction 1332.14 (e) NAVADMIN 025/12 (f) Phoncon with PERS-836 of 9 Apr 20 Encl:(1) DD Form 149 w/attachments (NR20120008202) (2) DD Form 149 w/attachments of 30 Jan 17 (3) U.S. Court of Federal Claims, Civil Action No. Order of 9 Sep 19 (4) Email correspondence with attachments of 21 Oct 19 (5) Email correspondence with attachments of 27 Nov 19 (6) Email correspondence with attachments of 14 Jan 20 (7) Email correspondence of 10 Feb 20 1. Pursuant to reference (a), Petitioner, a former enlisted Sailor, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting that the Board remove Body Composition Assessment (BCA) failures, correct Physical Readiness Information Management System (PRIMS) entries, and amend Evaluation Report and Counseling Records (EVAL), to include adjusting individual trait averages and promotion recommendations. The Board denied Petitioner’s request on 12 April 2013. On 30 January 2017, Petitioner submitted a request for reconsideration, which included an additional request for changes to his Certificate of Release or Discharge from Active Duty (DD Form 214) to include granting retirement, changing the assigned reentry code and reason for separation, and awarding back pay associated with his Navy Enlisted Classification (NEC) of HM-8403. The request was administratively closed by the Board’s Records Department before assignment of a docket number in order to provide Petitioner an opportunity to present his requests to the Naval Discharge Review Board. After his 30 January 2017 request was administratively closed, Petitioner filed a complaint in the United States Court of Federal Claims (COFC). The Government requested remand, which Petitioner opposed, and the COFC granted the Government’s motion and remanded this case to the Board for further proceedings consistent with enclosure (3). 2. After areviewof Petitioner’s COFC complaint and past Board requests (see enclosures (1), (2), and (4) through (7)) the following is a consolidated list of his requested relief: a.Removal of BCA failure Cycle 2, 2008; b.Removal of BCA failure Cycle 1, 2010; c.Removal of BCA failure Cycle 2, 2011; d.Removal of BCA failure Cycle 1, 2012; e.Correction of PRIMS for all BCA failures; f.Correction of blocks 20 and 36 of 16 November 2007 through 15 November 2008 EVAL; g.Correction of blocks 20 and 36 of 16 November 2009 through 15 November 2010 EVAL; h.Correction of block 20, 36, and 45 of EVAL dated 15 November 2011; i.Adjustment of individual trait averages and promotion recommendations on all affected EVALs; j.Removal of RE-3 code from DD Form 214; k.Removal of “weight control failure” as reason for separation on DD Form 214; l.Change reason for separation to reflect either “retirement-other” or “temporary disability– retired;” m.Payment of all back pay, benefits, allowances, entitlements, accrued leave, and all pays associated with Navy Enlisted Classification (NEC) HM-8403; n. Change military records to show Petitioner was honorably retired from active duty, and o.Ensure all records, whether paper or electronic, accurately reflect requested corrections and all records containing uncorrected material be destroyed. 3. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 9 April 2020 and, pursuant to its regulations, determined 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 service records, and applicable statutes, regulations, and policies. 4. The Board, having reviewed all 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. team. From September 2005 to April 2006, he again deployed to as the in a Marine Corps Reconnaissance team. In October 2008, Petitioner deployed in support of as a corpsman with Bravo Company, . In May 2010, he deployed to in conjunction with as a corpsman with Bravo Company, . While deployed, he most recently reenlisted for four years on 28 August 2010. c. Petitioner’s available official military personnel file (OMPF) does not indicate misconduct or poor performance outside of his struggles with BCA. In October 2008, he failed the BCA portion of his semi-annual Physical Fitness Assessment (PFA) but completed 77 pushups, 100 curlups, and a 1.5-mile run in 10 minutes and 37 seconds on the Physical Readiness Test (PRT). In May 2010, Petitioner failed the BCA portion of his semi-annual PFA but scored “Excellent High” on the PRT. d. In August 2011, Petitioner transferred to the Navy Medicine Operational Training Center Course. In November 2011, he failed the BCA portion of his semi-annual PFA and received an administrative remarks (Page 13) entry. Subsequently, Petitioner was notified of pending administrative separation action by reason of PFA failure and elected his right to an administrative discharge board (ADB). On 20 March 2012, the ADB recommended retention due, in part, to Petitioner’s demonstrated physical ability, PRT scores, ability to carry a 100-plus pound backpack while serving as a SARC with Marine Corps units, and his dedication to mentorship and impressive knowledge base. The Commanding Officer (CO), , did not concur with the ADB’s recommendation and, in a letter to the Commander, Navy Personnel Command (CNPC), recommended Petitioner’s separation with an honorable characterization of service. The record is incomplete in that it does not contain follow-on documents regarding the CO’s recommendation to NPC. e. In April 2012, Petitioner failed the BCA portion of his semi-annual PFA and was subsequently assigned to the Fitness Enhancement Program (FEP). Subsequently, Petitioner was notified of pending administrative separation action by reason of PFA failure and elected his right to an ADB. On 29 June 2012, that ADB recommended retention. referenced by the 16 October 2012 “Personal For” message from NPC to the CO, “Personal For” directs NMOTC “IRT Ref A” to reprocess Petitioner in accordance with reference (b). g. In September 2012, Petitioner failed the BCA portion of his semi-annual PFA. Subsequently, on 25 September 2012, Petitioner was notified of pending administrative separation action by reason of PFA failure and elected his right to an ADB. h. On 23 October 2012, Petitioner was notified of pending administrative separation action by reason of Best Interest of the Service (BIOTS) due to “admin board missing the overwhelming weight of evidence that SNM failed four PFAs in a four year period.” Petitioner elected to consult counsel, submit a written statement, and obtain copies. In accordance with reference (b) and as directed by NPC, Petitioner was not afforded the option to elect an ADB. On 7 December 2012, Petitioner submitted a statement, with supporting documentation, in regards to the BIOTS administrative separation action. i. On 13 February 2013, the ongoing administrative separation process for which Petitioner was notified on 25 September 2012 continued with the convening of the ADB in, . Petitioner was not allowed to meet in person with his counsel prior to the ADB, nor was he allowed to travel to and appear in person before the ADB. During the ADB, the video teleconference (VTC) failed, and Petitioner, who was located at his duty station in , was unable to participate in his defense via VTC. The ADB voted 2 to 1 to separate Petitioner, with the dissenting member recommending “complete medical and dietary plan and PTSD thorough eval” and “suspended separation for nine months if has a BCA waiver – med Board/Discharge.” j. On 20 February 2013, the CO, , the discharge authority, directed that Petitioner be discharged with an honorable (HON) characterization of service due to weight control failure. Petitioner was discharged on 15 March 2013 with an HON characterization of service and assigned a RE-3F (failed the PFA) reentry code. Contentions k. After review of Petitioner’s COFC complaint and past Board requests (see enclosures (1), (2), and (4) through (7)), the following is a consolidated list of his contentions: (1)Petitioner contends that procedures of reference (c) were not followed when his BCA measurements were taken in October 2008. Specifically, he contends the following: (a) The BCA was conducted 21 days before his PRT; (b) The BCA measurement was taken of his waist and not his abdomen; (c) Medical referral was not made; and (d)FEP was not initiated. (2) Petitioner contends that procedures of reference (c) were not followed when his BCA measurements were taken on 18 May 2010. Specifically, he contends the following: (a) The BCA measurement was taken of his waist and not his abdomen; (b) Medical referral was not made; (c) FEP was not initiated; and (d) A Page 13 entry was not made. (3) Petitioner contends that procedures of reference (c) were not followed when his BCA measurements were taken on 4 November 2011. Specifically, he contends the following: (a) The BCA measurement was taken the same day as PFA; (b) Excessive measurements were taken and recorded; (c) The measurements were not properly rounded; (d) Medical referral was not made; and (e) He was forced to participate in a mock PRT while outside of purported BCA standards. (4) Petitioner contends that the procedures of reference (c) were not followed when his BCA measurements were taken on 11 April 2012. Specifically, he contends that the BCA measurement was taken the same day as the PFA. Further, he contends that, after his BCA failure, he was not referred to medical. (5) Petitioner contends that his weight was negatively impacted by an “unforeseeable but correctable medical condition.” He further contends that his officer-in-charge (OIC) ignored his medical condition and “did nothing to address it.” (6) Petitioner contends that his commands did not initiate a medical referral after his BCA failures or after he did not show improvement after three weeks of participating in FEP, as required by reference (c), but he eventually referred himself to seek help with his weight. (7) The Board’s 12 April 2013 decision disregarded relevant and material evidence and was arbitrary and contrary to law. Specifically, in his request for reconsideration dated 30 January 2017 and his complaint filed with the COFC, he contends the following: (a)The Board erred in its finding that it was “unable to find that [Petitioner’s] eating disorder, diagnosed by a civilian psychotherapist on 4 May 2012, supported granting [him] a waiver from meeting Navy physical readiness standards.” He further contends that the Board did not consider all the submitted evidence, or the evidence submitted from a military psychiatrist who specifically recommended a BCA waiver and a period of limited duty. (b)The Board erred in its finding that it was unable to find the Command Fitness Leaders (CFLs) were not certified or that the required personnel were not present when the BCAs were conducted. He further contends that the Board’s finding that “specifically concerning [his] body fat computation for cycle 2, 2011, the Board found it would not have changed had [his] abdomen measurements been properly rounded down to the nearest half inch and [his] neck measurements been properly measured only twice, rather than three times.” Petitioner also contends that the Board disregarded the submitted statement showing that “there are no records showing that CFL were certified” and the submitted Freedom of Information Act (FOIA) request, which failed to produce required records. (c)The Board’s finding that “the Board was unable to find [Petitioner] would have been within standards had [his] neck and abdomen been properly measured more than once” or “had [his] abdomen been properly used in measurement rather than his waist” was arbitrary and contrary to law. (d) The Board erred in its findings that the timeframe between BCA measurement and the PRT did not invalidate the results. Specifically, the Board found the conduct of the BCA more than ten days before PRT and/or within 24 hours of the PRT did not invalidate the result despite the deviation from the reference (c)’s requirements. (e) The Board erred in its finding that “if [Petitioner is] correct that [he] had no medical referral or placement in a FEP after any of [his] BCA failures, this would not invalidate the results.” (f) Petitioner repeatedly contends that “once [he] prove[s] by clear and convincing evidence that the records violate the applicable Navy instructions, the burden shifts to the Navy.” He further contends, citing case law, that “it is axiomatic that an agency decision is ‘arbitrary and capricious’ if it is contrary to the agency’s own mandatory rules.” (g) Petitioner contends that the Board, in its final action letter of 12 April 2013, failed to explain its decision when it denied relief; failed to meaningfully consider the evidence presented; made multiple unfounded assumptions that Petitioner would not meet his physical standards even if the measurements were properly conducted; and ignored multiple medical reports and other documentation that contradicted its assumptions. He further contends that “instead of applying the appropriate instructions, rules, or regulations promulgated by the Navy or Department of Defense (DoD),” the Board “largely applied its own theoretical opinions as to likely outcomes had the mandated Navy or DoD regulation or procedure been applied.” (h) Petitioner contends that “had these injustices never occurred, [he] would have been eligible to reenlist and complete 20 years of service.” As evidence that he would have been approved to reenlist, Petitioner contends that he previously reenlisted three times and his specialization and NEC can barely maintain a 60% manned readiness. (i) Petitioner contends that, if his command had followed the recommendation of the dissenting ADB member, he would have received “fair consideration for medical retirement.” (j) Petitioner contends that he was qualified to retire under the Temporary Early Retirement Authority (TERA). Additionally, he contends that he was eligible to be retired “under multiple statutes, regulations, or laws,” but the Navy failed to retire him, medically or otherwise. (k) Petitioner contends that the Board applied the presumption of regularity but failed to explain why the presumption was not rebutted in the face of contrary evidence showing a trend of irregularity or disregard of mandated requirements. (l) Petitioner contends that the Board improperly and impermissibly shifted the burden of proof to Petitioner to prove that “had the Navy followed proper procedure” he would have been found within standards. Petitioner cites case law that “petitioners seeking correction of [their] records need not prove that, had [their] records been correct, the adverse personnel action would not have occurred.” (m)Petitioner contends that the Board acted arbitrary and capriciously when it administratively closed his January 2017 request after determining that the Navy Discharge Review Board (NDRB) was the appropriate forum. He further contends that this administrative closing “imposed a one-time reconsideration restriction . . . which does not appear to comport to any readily available public publication regardingthe governance of the BCNR.” (n)Petitioner contends that the Navy’s “systematic procedural and due process violations” and the Board’s disregard of the Navy’s procedural and due process violations are arbitrary and capricious, in violation of the Administrative Procedure Act. (o) Petitioner contends that the Board’s refusal to consider his constitutional claims “underlies a sham decision-making process whereby denial is based on the Board’s theoretical opinions rather than due process and the mandatory procedural requirements promulgated by the DoD and the Navy.” (8) Petitioner contends he was denied the ability to consult with legal counsel prior to signing his administrative separation notification documents. (9) Petitioner contends he was unjustly discharged. Specifically, he contends the following: (a) The CO, unjustly did not allow him to be physically present at his ADB, disallowed the removal of a challenged, prejudicial ADB member, and acted with “unlawful influence” to secure his administrative discharge. (b)The Navy failed to consider his military career, combat actions, military occupational specialty, or the recommendation from the President of the ADB to refer him to a medical board. (c) His discharge was in violation of reference (d), which provides that a member who is being separated for weight control failure is deemed unqualified for service if “weight control failure is the sole reason for separation” and the Service member “does not have a medical condition that interferes with weight control standards.” (10)Petitioner contends that the Navy failed to notify him of his “statutory right to extend his enlistment to 20 years of service.” Specifically, he contends he was never notified of, or presented with, any opportunities for reenlistment or extensions under Career Status Bonus (CSB)/REDUX (popular name for the Military Retirement Reform Act of 1986). (11)Petitioner contends that the command Senior Enlisted Leader (SEL) made false statements in Petitioner’s BIOTS package regarding his attendance at nutrition lectures. l. Petitioner submitted numerous advocacy letters from Marines he had served in combat with in and from fellow Service members serving with him at JSOMTC. These letters, in abundant and specific detail, testify that Petitioner was physically fit and excelled in physical performance on the battlefield and in the training environment. m. According to reference (e) and confirmed in reference (f), Petitioner was not eligible for retirement under the TERA. Per reference (e), the enlisted member must have completed at least 15 years of active service as of 1 September 2012; Petitioner, however, attained 15 years of active service only in February 2013. Although retirement under the TERA was available for use by the Services in 2012 through 2018, PERS-836 confirmed the Navy only offered TERA retirements in 2012. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. The Board determined that the repeated and fundamental flaws in the administration of the PFA programs, specifically the BCA portion, by Petitioner’s commands in 2008 and 2010 to 2012 constituted material error because the commands repeatedly deviated from established regulations. The procedural errors in the taping procedures, the timing requirements between BCA and PRT, the failure to complete required follow-on actions such as medical and FEP referrals, and the failure to accurately maintain CFL records, cast serious doubt on the reliability of the BCA measurements and overcame the presumption of regularity in the Government’s proper administration of the PFA program with respect to Petitioner. The Board determined it was in the interest of justice to remove the BCA failures of October 2008, May 2010, November 2011, and April 2012 from Petitioner’s records, PRIMS, and the EVALs specifically noted by Petitioner. Further, the Board determined that it was unjust for Petitioner to be denied authorization to travel and present his case in person to the 13 February 2013 ADB, especially in light of the fact that he was being considered for administrative separation due to weight control failure. This injustice was further compounded when, after the failure of the VTC option, Petitioner was required to testify via phone. The Board, after reviewing all documentation, evidence, statements, and advocacy letters provided by Petitioner, noted Petitioner’s obvious physical fitness and ability to successfully serve as a SARC on the battlefield and train other corpsmen in the school environment. The Board also noted Petitioner’s newly discovered medical condition and the lack of support from his chain of command, which resulted in refusal to grant a BCA waiver or accommodate medical treatment. Further, theBoard noted the dissenting member’s recommendation for suspension of the separation to allow Petitioner to seek a BCA waiver and medical treatment. In view of the above, the Board determined that it was in the interest of justice for Petitioner’s involuntary separation due to weight control failure to be rescinded and removed from his record. The Board’s preferred course of action would be to retire Petitioner under TERA in light of the fact he served 15 years of active service. Because Petitioner had not attained the requisite active service in 2012 when TERA was authorized by the Navy, the Board determined the only appropriate relief, given the specific facts and circumstances of Petitioner’s situation, is to correct the injustice by granting Petitioner constructive credit to attain 20 years of active service and retire. The Board, having determined full 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: The record of discharge from the U.S. Navy, effective 15 March 2013, is rescinded. Note: Petitioner's DD Form 214 will be expunged. Petitioner executed an immediate reenlistment contract (NAVPERS 1070/601), operative on 15 March 2013, for a term of 5 years. Note: this will establish an EAOS/SEAOS of 14 March 2018. Petitioner was transferred to the Fleet Reserve, on 28 February 2018. Petitioner completed over 20 years of active service with a NEC 8403. Note: a DD Form 214 will be issued with a SPD code of NBD (Sufficient Service for Retirement) to include all normal markings that pertain to this type of separation. Note: The Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner's records to determine if Petitioner is due any back pay and/or allowances. Furthermore, if Petitioner received involuntary separation pay, it will be deducted from his financial account. Petitioner’s fitness report for the following reporting periods be modified as follows: a. 16 November 2007 to 15 November 2008: (1) Block 20: Redact “NS” (2) Block 43: Redact “however failed Body Composition Assessment at 28%” b. 16 November 2009 to 15 November 2010: (1) Block 20: Redact “PF” (2) Block 36: Change to “3.0 Meets Standards” c. 2 July 2011 to 15 November 2011: (1) Block 20: Redact “F” (2) Block 36: Change to “3.0 Meets Standards” (3) Block 43: Redact “Significant problems due to 3 PFA failures within 4 years therefore is not recommended for retention or promotion” (4) Block 45: Change to “Promotable” (5) Block 47: Change to “Recommended” Petitioner’s record be corrected by removing the following BCA failures, all associated documents, and all associated PRIMS records from the following PFA cycles: a.Cycle 2, 2008 b.Cycle 1, 2010 c.Cycle 2, 2011 d.Cycle 1, 2012 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 all information systems/data base entries that reference or discuss the material being expunged. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s original application was received by the Board on 7 August 2012. 5. 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. 6. 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy.