DEPARTMENT OF THE NAVY
BOARD FOR COPRECTIQN OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51oo

HD:hd
Docket No. 05819-06
22 January 2007

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552. You requested removal of all your fitness reports from Naval Hospital Charleston, specifically, the six reports spanning the period from 16 June 2001 through 29 November 2004.

A three—member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 19 January 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by the Navy Personnel Command dated 10 September and 23 October 2006, copies of which are attached. The Board also considered your memorandum dated 5 January 2007 with enclosures and the Commander, Navy Region Southeast letter dated 27 June2003 concerning your complaint of wrongs underArtjcle 138, Uniform Code of Military Justice.

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. In this connection, the Board substantially concurred with the comments contained in the advisory opinion dated 10 September 2006. The Board noted that the contested reports for 16 June to 3 August 2001 and 4 August to 31 October 2001 were “not observed.” Only the reports for 1 November 2001 to 31 October 2002, 1 November 2002’ to 26 June  2003, 27 June to 31 October 2003 and 1 November 2003 to 29 November 2004 were observed.

Specifically concerning the contested fitness report ending 23 June 2003, the Board noted that the applicable directive was Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10, not BUPERSINST 1610. lOA, dated 20 September 2005. The Board observed that BUPERSINST 1610.10, enclosure (2), paragraph 4 states a fitness report is adverse if it “shows a strong decline in performance within the same pay grade.” The Board found the report in question, regardless of whether it is declining as that term is used in the applicable directive, does include narrative that explains the decline of your marks in blocks 35 (“Military Bearing/Character”) and 38 (“Leadership”) from the immediately preceding report ending 31 October 2002 in the same grade from the same reporting senior. The Board did not find that the narrative contradicted the marks assigned in the report ending 26 June 2003. The Board was unable to find this report was in reprisal f or either your Article 138 complaint or your rebuttal to the preceding report. The Board agreed with you that block 30 (“Date Counseled”) of the report ending26 June2003 should not have been marked “NOTREQ” (not required), as April 2003, when you should have received mid-term counseling, fell within the reporting period. However, the Board did not consider this a material error, as it was unable to find you did not receive counseling during the period, noting the report indicates you received “continued guidance.” In any event, the Board generally does not grant relief on the basis of an alleged absence of counseling, as counseling takes many forms, so the recipient may not recognize it as such when it is provided. The Board also agreed with you that block 40 (recommendation for next career milestone) should not have been left blank, but it did not consider this a material error warranting relief. Finally, your never having been assigned a promotion recommendation above “Promotable” (third best of five possible marks) and your having received an end of tour award that was downgraded from that initially recommended did not persuade the Board that any of the fitness reports at issue was materially erroneous or unjust.

In view of the above, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep mind that a presumption of regularity attaches to all official records. Consequently, when applying for  correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

ROBERT D.ZSALMAN
Acting Executive Director
Enclosures
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
						 MILLINGTON TN 38055-0000

					1610
											PERS-3113
											10 September 2006

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via:	PERS/BCNR Coordinator (PERS-3 IC)

Subj:

Ref:	(a) BUPERSINST 1610.1OA (EVALMAN)

End:	(1) BCNR File 05819-06 w/Service record

1.	Enclosure (1) is returned. The member requests the removal of her fitness report for the period 1 November 2002 to 26 June 2003. If approved, the member requests all subsequent fitness reports from Naval Hospital Charleston be removed from her records.

2.	Based on our review of the material provided, we find the following:

a. A review of the member’s headquarters record revealed the report in question to be on file. It is signed by the member acknowledging the contents of the report and her right to submit a statement. The member indicated on the report that she intended to make a statement. The member’s statement and the reporting senior’s endorsement are both included in the member’s record.

b.	The report in question is an adverse Detachment of Reporting Senior/Regular report. The member alleges the following comments on her report are unfair and unjust:

“Although organized and an otherwise effective program manager, she requires continued guidance on interpersonal communication skills. The potential impact on credibility caused her to be relieved as CEMO”.

Additionally, the member believes the two performance trait marks of ‘3.0’ and one performance trait mark of ‘2.0’ were issued in reprisal by the reporting senior due to the petitioners submission of an Article 138 complaint.

		c. The report is a valid fitness report.

	d.	The member accurately exercised her rights to file a Complaint of Wrongs, Article 138, UCMJ, under the provisions of Article 1126, U.S. Navy Regulations (1990). However, per the official response the member received from the Deputy Assistant Secretary of the Navy (Military Program) regarding the Article 138 filed, the general court-martial convening authority, Commander Navy Region Southeast, concluded that the petitioner’s allegations were without merit under JAGMAN Chapter III.

e.	The evaluation of a member’s performance, the member’s standing within a summary group, and corresponding promotion recommendation that is limited by forced distribution guidelines, are all responsibilities of the reporting senior. It is not uncommon for members to disagree with their reporting senior’s appraisal. In this case, the reporting senior assigned the member a promotion recommendation of “Promotable,” which in no way equates to deficient performance.

f.	The reporting senior is charged with commenting on the performance and/or characteristics of each member under his/her command and determine what material will be included in a fitness report. The comments and performance trait marks assigned on a report are at the discretion of the reporting senior. The evaluation of a member’s performance and making recommendations concerning suitability for appointment and assignments are the responsibility of the reporting senior.

g.	The member does not prove the report to be unjust o in error.

3.	We recommend the member’s record remain 

By direction

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
5420
PERS—480/08 09
23 Oct 2006

MEMORANDUM FOR	EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via: Assistant for BCNR Matters (PERS-3lC)

Subj:

Ref: (a) PERS-311 memo of 10 Sep 2006

Encl:	(1) BCNR File O^58l9-06/w record 1. Enclosure (1) is returned. Concur with comments and recommendations found in reference (a)

2 After examination DD Form 149, we find no request that is action able by PERS-480 does not request that her failures of selection be removed nor does she request a special promotion selection board be held on her behalf. does make a comment in her DD Form 149 addendum that she believes that she failed to select to the rank of commander due to the fitness reports given her during a tour at Naval Hospital Charleston. Selection board deliberations are protected by 10 USC and may not be divulged to anyone not a board member or board recorder. Therefore, there is no way to conform suspicion that these fitness reports were the cause of her four failures of selection. The board conducts itself in accordance with law, service regulations and the precept issued by the Secretary of the Navy. offered no evidence that the selection boards that did not choose her for promotion to commander acted in any way other than those prescribed by law and service regulations.

												Director, Officer Career 
			Progression Branch