Search Decisions

Decision Text

NAVY | BCNR | CY1998 | NC9802722
Original file (NC9802722.rtf) Auto-classification: Approved

        

DEPARTMENT OF THE NAVY
                  BOARD FOR CORRECTION OF NAVAL RECORDS
                           2 NAVY ANNEX
                           WASHINGTON. D. C. 20370-5100

                                             SMC
                                             Docket No: 02722-98
                                             22 April 1999


From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
         .,
Subj:
         REVIEW OF NAVAL RECORD

Ref: (4 Title 10 U. S. C. 1552

Encl: (1) DD Form 149 dtd 25Mar98 w/attachments
         (2) Pers-32 memo dtd 28May98
         (3)BCNR ltr dtd 16Nov98 less enclosures
         (4)Rep sr's ltr dtd 28Dec98 and
                  extract from BUPERSINST 1610.10, 2Aug95
         (5)NPC-3 11 memo dtd 26Feb99
         (6)Subject's ltr dtd 31Mar99
         (7)Subject's naval record

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, enclosure (l), with this Board requesting, in effect, that the applicable naval record be corrected by changing his promotion recommendation on his enlisted performance evaluation report for 30 January to 15 November 1996 from "Promotable" to "Must Promote." A copy of this report is at Tab A.

2. The Board, consisting of Messrs. Rothlein and Morgan and Ms. Brown, initially
reviewed Petitioner's allegations of error and injustice on 13 November 1998 and determined that additional information should be solicited from Petitioner's reporting senior. The Board completed deliberations on 21 April 1999. Pursuant to its regulations, the Board 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, 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, finds as follows:

a. Before applying to this Board, Petitioner exhausted all administrative remedies which were available under existing law and regulations within the Department of the Navy.

b. The contested report evaluates Petitioner in his current rate of PNl (pay grade E-6). Block 45 (" Promotion Recommendation -Individual")is marked "Promotable" (third

best). Block 46 (" Promotion Recommendation -Summary")shows Petitioner was one of 3 1 peers marked "Promotable, " with 19 "Must Promote" (second best)and 13 "Early Promote" (best).

         Petitioner believes the report is in error because the entry of "4.14" in block 40
(" In&idual Trait Average"), which is above the reporting senior's average of "3.83" for the period, warrants at least a promotion recommendation of "Must Promote." He contends that whereas only 19 petty officers were marked "Must Promote," as many as 26 could have been
so marked in a summary group of 63.

d. In the advisory opinion attached as enclosure (2), the Bureau of Naval Personnel (BUPERS)office having cognizance over the subject matter addressed in Petitioner's
application recommended retention of the contested evaluation. The opinion stated that the advancement recommendation reflected in block 45 represents the reporting senior's appraisal
of the member's readiness for the duties and responsibilities of the next higher pay grade.
The opinion further stated that the recommendation is valid even though it may not be
consistent with the average of the trait marks. Finally, BUPERS stated that use of the maximum numbers authorized in the promotion recommendation, block 45, is at the
discretion of the reporting senior; and that distribution in a smaller percentage is not in
violation of applicable directives.

e. At the Board's direction, the Board's staff sent the letter at enclosure (3)to the
reporting senior, asking why he had rated Petitioner "Promotable," while apparently assigning more favorable promotion recommendation to peers with lower trait averages. The letter also asked that if the reporting senior determined a mistake had been made, he indicate whether he would support assigning Petitioner a more favorable promotion recommendation and, if so,
what particular promotion recommendation.

f. The reporting senior's letter in response is at enclosure (4). In paragraph 2, he recommends assigning Petitioner a promotion recommendation of "Must Promote." He states " . .. it is clear that an error was made in assigning promotion recommendations for that
E-6 evaluation period. " He relates that during the process of preparing the E-6 evaluations, he assigned promotion recommendations on the basis of a combined quota for "Early Promote"
and "Must Promote" recommendations of 50 percent, when the actual limit is 60 percent. He says that had he realized he could place additional personnel in the "Must Promote" category,
he would have raised Petitioner's recommendation. In paragraph 4 of his letter, he states that after making promotion recommendations, he did not make adjustments to make trait averages more consistent with promotion recommendations; that had he made these revisions, he would
have lowered Petitioner's mark in "Teamwork" (block 38)from "4.0" (second best)to "3.0"
(third best); but that he does not recommend making such a change now. Finally, in paragraph 5 he states that "Although a supplemental report would normally be in order, two
years have elapsed since the ending date of the report." and "Accordingly, 1 plan to take no further action. "



2

t$ Enclosure (4)also includes an extract from the applicable fitness report instruction, which shows that for all pay grades, the maximum for "Early Promote" is 20 percent of the summary group, rounded up; and that for pay grade E-6, the maximum total for "Early
Promote" and "Must Promote" is 60 percent of the summary group, rounded up. In this
case, the reporting senior used the maximum of 13 for "Early Promote." Therefore, the
maximum for "Must Promote" was 25, the difference between 13 and 38 (60 percent of the
63-member summary group, rounded up).

h. Enclosure (5)is an advisory opinion from the Navy Personnel Command (NPC) in light of the reporting senior's letter. This opinion recommends retention of the contested
report as written. NPC says the reporting senior's statement "appears to contradict itselt'," in that paragraph 2 recommends changing Petitioner's promotion recommendation, while
paragraphs 4 and 5 do not. They conclude by stating that if the reporting senior decides to submit "supplementary material," they have no problem accepting it for inclusion in
Petitioner's headquarters record.

i. At enclosure (6), Petitioner's reply to the NPC advisory opinion at enclosure (5), he states that he concurs with the reporting senior's recommendation of assigning a promotion recommendation of "Must Promote," but requests the report be left as written if a change
would include lowering his mark in "Teamwork" to "3.0." Petitioner notes the reporting senior's concession that he made errors for the evaluation period in question. Petitioner states
that in a requested interview with the reporting senior, Petitioner addressed the inconsistencies
he perceived and the reporting senior's failure to use the maximum number of "Must
Promote" recommendations; that the reporting senior did not mention lowering his mark in "Teamwork"; and that after their discussion, ". . . it was apparent that he felt it was too much trouble to change all the evaluations."

CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the recommendations at enclosures (3)and (5)to retain the contested report as written, the Board
finds an injustice warranting the requested change of Petitioner's promotion recommendation, from "Promotable" to "Must Promote. "

In this connection, the Board finds the reporting senior's letter persuasive and not at all selfcontradictory. They note that the unfavorable advisory opinion at enclosure (5)does not
assert that he contradicts himself, but states only that he "appears" to do so. As a further matter, the Board does not feel Petitioner should have to solicit "supplementary material"
from the reporting senior. First, this would not fully correct his record, since the addition of supplementary material would leave the original uncorrected report for record reviewers to
see. Further, and more importantly, the reporting senior has indicated he does not plan to
submit a supplemental report. Therefore, requiring Petitioner to obtain such a report will
leave him with no remedy at all for the error the reporting senior has admitted.



3

In view of the foregoing, the Board recommends the following corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected by making the following changes to his enlisted performance evaluation report for 30 January to 15 November 1996, dated
8 November 1996 and signed by Command CEC, USN:

(1)Block 45 (" Promotion Recommendation -Individual"): Delete "X" under "Promotable," and enter "X" under "Must Promote."

(2)Block 46 (" Promotion Recommendation -Summary"): Change from "3 1" to "30" under "Promotable," and from "19" to "20" under "Must Promote."

b. That appropriate corrections be made to the magnetic tape or microfilm maintained
by the Navy Personnel Command.

C. That any material or entries inconsistent with or relating to the Board's recommendation be corrected, removed or completely expunged from Petitioner's record and that no such entries or material be added to the record in the future.

d. That any material directed to be removed from Petitioner's naval record be returned to this Board, together with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross reference being made a part of 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.

(jihm#a- J, /5g'u&2 ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your review and action.



W. DEAN PF
         JUN 25 1999
Reviewed and approved:


         KAREN S. HEATH
         Principal Deputy Assistant Secretary of the Navy
                  (Manpower and Reserve Affairs) 4

         . . .
a 7aa-DEPARTMENT OF THE NAVY
                  BUREAU OF NAVAL PERSONNEL
                  WASHINGTON. D. C. 20370-5000 !? 6775 LY REFER TO

                           Pers-32
                           28 MAY 98


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

         Via: BUPERS/BCNR Coordinator (Pers-OOXCB )

         Subj:

         Ref: (a)BUPERSINST 1610.10, EVAL Manual
                  (b)NAVOP 043/95, Interim EVAL Manual Change

         Encl: (1)BCNR File
1.
Enclosure (1)is returned. The member requests change of his promotion recommendation to Must Promote.

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

a. Review of the member's headquarters record revealed the
report in question. The report is signed by the member in block
51 acknowledging the contents of the report and his right to
submit a statement. The member indicated he did not desire to
submit a statement; however, in accordance with reference (a),
Annex S, paragraph S-8, the member has two years from the ending
date of the report to submit a statement if desired.

b. Reference (b), encourages the consistency of performance
report marks, comments and recommendations. The advancement recommendation reflected in block 45 represents the reporting
senior's appraisal of the member's readiness for the duties and responsibilities of the next higher paygrade. It is made at the discretion of the reporting senior and is not required to be
consistent with other recommendations. The recommendation is
valid even though it may not be consistent with the average of the
trait marks.

                  C. The member alleges the report is in error because the
reporting senior did not utilize the authorized quotas for Must
Promote. In accordance with reference (a), Annex A, a maximum of
20%is authorized for the Early Promote category and 40%for Must
Promote. Use of the maximum amount of quotas in the promotion recommendation, block 45, is at the discretion of the reporting
senior. Distribution in a smaller percentage is not in violation
of reference (a).

Subj:

d. The report (marks, comments and recommendations)are the responsibility of the reporting senior. It is not required to be consistent with other reports or routinely open to challenge.

e. The member does not prove the report to be unjust or in error.

3. We recommend retention




/~&Z~Z~y Personnel Evaluation &Correspondence
         Division

DEPARTMENT OF THE NAVY
NAVY PERiOWWEL COMMAND
5750 IWTEDRITY DRIVE
MILLINDTON TN 3805 5-0000

         1610
NPC-311 26 FEB 99


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

Via: NPC/BCNR Coordinator (NPC-OOXCB)

Subj:

Ref: (a)BCNR memo of 28 DEC 98
         (b)Pers-32 ltr of 28 May 98
         (c)CDR Marrs ltr of 28 Dee 98
         (d)BUPERINST 1610.10, EVAL Manual

Encl: (1)BCNR File

1. Per reference (a), reference (b)is amended to include the following:

a. Reference (c), the reporting senior's statement, appears to contradict itself, in that paragraph 2, recommends a change of the member's promotion recommendation, and paragraphs 4 and 5 do not recommend a change to the member's promotion recommendation.

b. In paragraph 2, the reporting senior states, "Upon further review of the available documents, it is clear that an error was made in assigning promotion recommendations for that E-6
evaluation period. I recommend assigning PNl Burton a promotion recommendation of "Must Promote".

C. In paragraph 4, the reporting senior states, "Regretfully, after assigning promotion recommendations I did not make adjustments to the appropriate evaluations to make the trait averages more consistent with the promotion recommendations. Had I made these revisions I would have lowered PNl Burton's mark in Teamwork to a "3.0". However, I do'not recommend making such a change at this time."

d. In paragraph 5, the reporting senior states, "Although a supplemental report would normally be in order, two years have elapsed since the ending date of the report. Accordingly, I plan to take no further action. I1

2. Per reference (d), Annex P, paragraph P-4. c, supplementary material may be submitted more than 2 years after the report
ending date if the reporting senior demonstrates in a cover letter, to CHNAVPERS satisfaction, why the material could not have been submitted in a timely manner.

3. Based on reference (c), we recommend retention of the report as written. However, if the reporting senior decides to submit supplementary material per reference (d), Annex P, paragraph P-4, CHNAVPERS has no problem accepting the supplemental material for inclusion in the member's headquarters record.






         Evaluation Branch































2

Similar Decisions

  • NAVY | BCNR | CY2000 | 06967-00

    Original file (06967-00.doc) Auto-classification: Approved

    PERS-832C states that he “was, in fact, convicted of DUI under a Deferred Prosecution agreement and his command had every right to document that event in his service record.” They further state “The fact that he met the required obligations, applied for and received a court dismissal of the charge two years later does not negate the incident.” They conclude that documentation supporting that significant event should remain in the record; and that maintaining such documents is essential to...

  • NAVY | BCNR | CY1999 | 01887-99

    Original file (01887-99.pdf) Auto-classification: Approved

    They recommended modifying blocks 20 and 36 as Petitioner originally requested, on the basis that he had provided documentation indicating he should have been medically waived from the PRT, but they concluded he had not provided sufficient justification for changing his promotion recommendation. As Petitioner now requests removal of the recommendation, rather than modification, and the evidence does not show what the recommendation would have been if he had been waived from the PRT, the...

  • NAVY | BCNR | CY2005 | 02897-05

    Original file (02897-05.rtf) Auto-classification: Approved

    In a letter dated 5 January 2005 to Petitioner (copy in enclosure (1)), the reporting senior explained the document had been submitted “to assist the [CO’s] Trait Average, and enable applicable reports to be graded on the same basis.” He said “These corrections were submitted for three other Evaluation Reports within the same time period.” Finally, he said the changes “should not be viewed as an indication of any change in your performance.” This letter is not in Petitioner’s record. They...

  • NAVY | BCNR | CY2006 | 05966-06

    Original file (05966-06.rtf) Auto-classification: Denied

    A review of the member’s headquarters record revealed the report in question is not on file, however, a copy of the report is present in enclosure (1). We recommend the member’s reporting senior be required to correct the report by changing the promotion recommendation in block 45 to “Significant Problems” as required by reference (a), and the member should be required to sign the report and prepare a Statement to the Record if he so desires. DEPARTMENT OF THE NAVYNAVY PERSONNEL...

  • NAVY | BCNR | CY2006 | 07367-06

    Original file (07367-06.rtf) Auto-classification: Denied

    The Board also considered your letter dated 16 January 2007.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. Subsequently, the member’s record was reviewed and he was selected for promotion to the grade of Lieutenant Commander, with this report in his record. h. If directed by the Board for Correction of Naval Records, PERS-3 11 will accept a...

  • NAVY | BCNR | CY2001 | 00953-01

    Original file (00953-01.pdf) Auto-classification: Approved

    They substantially concur with the PERS-61 opinion at enclosure (2) in finding that the fitness report at issue should be corrected as requested. report of 3. Only the reporting senior who signed the original fitness report may submit supplementary material for file in the member ’s record.

  • NAVY | BCNR | CY2002 | 00838-02

    Original file (00838-02.rtf) Auto-classification: Approved

    Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, enclosure (1), with this Board requesting, in effect, that the applicable naval record be corrected by removing the fitness report for 1 October 1999 to 30 September 2000. He alleges that when he discussed the report with the reporting senior, the reporting senior “gave no justification for the downgrade,” but indicated only that the promotion recommendation “‘.. .was the...

  • NAVY | BCNR | CY2001 | 08041-00

    Original file (08041-00.pdf) Auto-classification: Denied

    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. The member provided a copy of her statement and reporting senior’s endorsement with her petition. When the member’s statement and reporting senior’s endorsement is returned and found suitable for filing, we will place it in the member’s digitized record.

  • NAVY | BCNR | CY2007 | 06305-07

    Original file (06305-07.rtf) Auto-classification: Approved

    Petitioner’s application at enclosure (1) includes a letter dated 2 July 2007 from the reporting senior stating the following:The initial report for this period was mailed to BUPERS [Bureau of Naval Personnel] without my approved corrections to the draft report. He notes that his PSR entry for the period in question does not reflect, as it should, that supplemental material has been submitted, but that this error will not have to be corrected if his request is approved.MAJORITY...

  • NAVY | BCNR | CY2005 | 03461-05

    Original file (03461-05.rtf) Auto-classification: Approved

    03461-05 4 April 2006 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy REVIEW OF NAVAL RECORD R Ref: (a) 10 U.S~C. 3 (1) Block 20: Change from “MINS” to “PINS.” (2) Block 43 *36: Change to read “- [PFA] Results: APR 03 P/NS (1st failure) and OCT 03 P/NS (2nd failure) CONCLUSION: Upon review and consideration of all the evidence of record, the Board finds the existence of an error and injustice warranting partial relief, specifically, the requested correction...