DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204·2490 Docket No: 9003-19 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) Chairman, BCNR ltr TDK Docket No. 6928-17 of24 Jun 19 (2) ltr of 10 Aug 17 (3) Chairman, BCNRtr TDK Docket No. 1772-15 w/encls (approved 19 Aug 16) (4) DD Form 149 w/attachments (5) Email Message from CTO to Petitioner of 14 Dec 11 (6) Statement of Service of 15 May 18 1. Pursuant to the provisions of the reference, Petitioner, a retired commissioned officer of the Navy Reserve, filed enclosure (2) with the Board for Correction of Naval Records (Board or BCNR), requesting that the Board reconsider that part of the action of the Assistant General Counsel for Manpower and Reserve Affairs (AGC M&RA), enclosure (3), denying Petitioner's request to correct his record to reflect, among other things, that, upon his discharge from active duty on 13 January 2012, he served continuously on the Reserve Active-Status List (RASL) in the Selected Reserve (SELRES) from 14 January 2012 through 26 February 2014, and for consideration by those promotion selection boards for which he would have been eligible until his retirement, enclosure (3). In addition to his request for reconsideration, Petitioner, in enclosure (2), requested, for the first time, credits for Reserve correspondence courses, Aviation Career Incentive Pay (ACIP) and Hazardous Duty Pay (HOP) as an enlisted aircrew member, a fitness report for the period ending 31 January 2017, and that the results of the Fiscal Year (FY) 2018 Navy Reserve 0-4 Line Promotion Selection Board be stayed pending issuance of that fitness report. 1 2. In his initial application, enclosure (3), Petitioner requested that he be transferred to the SELRES, that he receive service credit for time lost (from 14 January 2012 to 26 February 2014), and that he be considered for missed promotions during the period of time lost. On 19 August 2016, the AGC M&RA approved the Board's recommendation to partially grant Petitioner's request by directing his placement in the SELRES-instead of the Individual Ready Reserve (IRR)-effective 27 February 2014 and granting credit with 50 non-pay points for his anniversary years ending 2015 and 2016 (and partially for 2017).Petitioner's statement of service currently reflects the correspondence courses in question, rendering his request for credit for such courses moot. 3. On 28 December 2016, Petitioner reported to the Navy Operational Support Center (NOSC) Seattle. On 17 April 2017, the FY 2018 Reserve 0-4 Line Promotion Board convened, and if adjourned on 21 April 2017. Petitioner was not selected for promotion. On 4 June 2017, Petitioner's fitness report ending 31 January 2017 was submitted to the Navy Personnel Command (NPC). On 23 January 2018, Petitioner was notified that his separation was required on 1 May 2018. On 26 April 2018, the NPC directed that Petitioner be transferred to the Retired Reserve with an effective date of 1 May 2018. On 1 May 2018, Petitioner was transferred to the Retired Reserve awaiting pay at age 60 as a result of forced attrition. 4. That Board reconsidered Petitioner's allegations of error and injustice on 9 November 2018 and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence of record-other than what had already been granted by the 19 August 2016 Board. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval record, and applicable statutes, regulations, and policies. 5. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice, found 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. On 27 July 1990, Petitioner enlisted in the Delayed Entry Program (DEP) in the United States Navy Reserve, and served both in an active and inactive status until he commissioned on 17 August 2001. See enclosure (6). c. On 15 October 2005, Petitioner was arrested and charged with driving under the influence of alcohol (DUI). Petitioner did not notify his command at the time of his arrest. However, Petitioner's subsequent command was notified of the incident in December 2008. Petitioner's case was adjudicated on 9 January 2009: He was found guilty and sentenced to one day in jail and two years' probation. d. On 30 November 2009, a Board oflnquiry {BOI) was held, and by a vote of two to one, the Board recommended that Petitioner be retained in the naval service. e. On I November 2011, as a result of his second failure of selection for the grade of lieutenant commander (LCDR)/0-4, Petitioner signed a NAVPES 1070/613, agreeing to affiliate with the Navy Reserve for a period of at least three years, and sign a Navy Reserve oath of office, if offered by the Navy. See enclosure (3). f. On 29 November 2011, Petitioner's name was removed from the RASL to review the adverse information in his record. The Adverse Information Board (AIM) determined that Petitioner's misconduct was "previously vetted" as a result of his retention at a BOI. As a result, Petitioner was placed back on a RASL scroll and recommended for a Reserve commission by the Secretary of the Navy (SECNAV). g. On 14 December 2011, the Career Transition Office (CTO) confirmed that Petitioner's name was on a scroll that was forwarded to the Secretary of Defense (SECDEF) and that recommended that Petitioner be placed on the RASL and his request for a reserve Oath of Office be approved. See enclosure (5). h. Petitioner completed a VA Form 21-526c, Pre-Discharge Compensation Claim, dated 12 January 2012, which was received by the Department of Veterans Affairs (DVA) on 13 January 2012. See enclosure (3). 1. Petitioner was discharged on 13 January 2012. j. On 13 February 2012, a memorandum for the record was issued documenting the definition of the term "previously vetted," which confirmed that Petitioner's misconduct was correctly determined to be previously vetted by the AIM Board. k. On 14 August 2013, Petitioner was approved for a commission in the Navy Reserve. 1. On 2 October 2013, Petitioner completed 2807/2808 physical evaluation requirements at the m. On 21 October 2013, Petitioner's application for accession was denied because he was found not physically qualified under accession medical standards, instead of the retention medical standards he would have been processed under had his request for a Reserve oath of office been processed in a timely manner. n. On 27 February 2014, Petition received the Reserve oath of office and was placed in the IRR. o. On 22 January 2015, Petitioner submitted a DD Form 149 to the Board, requesting placement in the SELRES, consideration for promotion, and service credit for time lost. p. On 19 August 2016, the partially granted Petitioner's request by crediting him two satisfactory years-2015 and 2016, and directing that he be placed in the SELRES once he passed a retention physical. Petitioner, however, was not granted any service credit from 2012 to 2014, nor was he granted a special selection board (SSB). q. On 29 December 2016, after passing a retention physical, Petitioner was assigned to r. On 31 January 2017, Petitioner's first fitness report after his assignment to was due. It was not completed and submitted, however, until 4 June 2017. s. On 17 April 2017, the FY-2018 Reserve 0-4 promotion board convened, and Petitioner was not selected. t. On 10 Aug 2017, Petitioner's attorney submitted a request to the Board for reconsideration. u. On 1 May 2018, Petitioner was transferred to the Retired Reserves awaiting pay at age 60 due to forced attrition. v. On 9 November 2018, the Board reconsidered Petitioner's case, and denied his requests for further correction to his naval record. BOARD CONCLUSION Petitioner contends that, because his misconduct was previously vetted by his 30 November 2009 801, the 29 November 2011 decision by the AIM Board was unnecessary. Moreover, he also contends that he was erroneously withheld from the RASL appointment scroll sent to the SECDEF for approval, and that he was incorrectly considered, instead, by the adverse infonnation process. The Board, however, did not agree with Petitioner's contention. The Board concluded that, because the 21 April 2011 SECNAV memorandum does not define "previously vetted," the process followed to detennine whether or not his misconduct was previously vetted at the time of Petitioner's screening for the RASL was not improper. Additionally, the Board noted that, on 14 December 2011, Petitioner was contacted by the CTO via email, enclosure (5), confinning that his name was on a RASL appointment scroll that had been approved by the SECNAV and en route to the SECDEF for approval. The Board found, however, that for unknown reasons, Petitioner's name, through no fault of his own, was not forwarded on an approved RASL appointment scroll until August 2013. However, by that time, Petitioner was medically unqualified for appointment to the . As a result, Petitioner accepted his Reserve commission and re-affiliated in the IRR. The Board found, further, that Petitioner's record contains no evidence, and he submitted none, to support his assertion that he is owed ACIP or HDP as a result of his time as an enlisted aircrew member. The Board additionally noted that Petitioner's fitness report ending 31 January 2017 was included in his official military personnel file (OMPF) after the FY 2018 Reserve 0-4 Line Promotion Board convened .. However, the Board detennined that the fitness report is non­observed and thus would not have affected Petitioner's competitiveness before the promotion board. In this regard, any error is harmless. Moreover, under SECNA VINST 5420.193, the Board noted that it does not have the authority to "stay" the FY 2018 promotion board's results, and that, in any event, that matter is moot because the results of that selection board have already been effectuated. The Board found, however, that, through no fault of his own, Petitioner's appointment to the RASL and the approval of his request for a Reserve oath were delayed for unknown reasons. Moreover, the Board detennined that, due to such error, the approval of Petitioner's transfer to the RASL and his affiliation with the SELRES was unjustly delayed until 27 February 2014. BOARD RECOMMENDATION In view of the above, the Board recommends the following corrective action. In doing so, the Board noted that the SECDEF has already appointed Petitioner in the Navy Reserve, and that Petitioner has already been found to be medically qualified for such appointment. That Petitioner's naval record be corrected to reflect that, upon his discharge from active duty on 13 January 2012, he was appointed to the RASL on 27 February 2012, that he was offered-and he accepted-a Reserve oath of office on that date, and that he affiliated with and served continuously in the SELRES from that date through the date of his retirement.2 That Petitioner be granted credit of 50 non-pay points for his anniversary years ending 2013 and 2014. That a FY 2013 Reserve 0-4 Line Officer SSB be convened to consider Petitioner for promotion. That no further corrective action be taken. 6. 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. 7. The foregoing action of the Board is submitted for your review and action. The Board noted that, because the average processing time for approval of a Service member's request for a Reserve commission is three to six months, Petitioner would not have received his approved oath of office, in the best-case scenario, until February 2012, even assuming his name had not been removed from the original scroll in November 2011. Additionally, the Board chose 27 February in order to align with Petitioner's current anniversary date.