NAVY
DEPARTMENT OF THE
BOARD  FOR CORRECTION OF NAVAL RECORDS

 

2 

NAVY ANNEX

WASHINGTON, D.C. 20370-5100

HD: hd
Docket No: 06046-98
13 April 1999

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10, United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 8 April 1999 and completed its deliberations on
9 April 1999. 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 opinion furnished by the Navy
Personnel Command dated 16 February 1999, a copy of which is attached. The Board also
considered your letters dated  

.29 March 1999 with enclosure and 9 April 1999.

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 would have directed the amendment of the contested fitness report recommended
by the advisory opinion but for your letter of 9 April 1999, which indicated you would not
consider such an amendment to be remedial.

The Board fully concurred with the advisory opinion in concluding that the report at issue
should not be removed. Although the reporting senior cited no specific instances of deficient
performance, they found the narrative, without the portion whose removal was recommended
by the advisory opinion, properly satisfied the requirement to explain the adverse mark of
“1.0” in block 38 ( “leadership”). They found the reporting senior properly mentioned matters
that occurred before the reporting period in order to explain the adverse mark he was
currently assigning you. They duly considered the letters from the reporting senior and
commanding general (enclosures (13) and (14) to your application), but they recognized that

both were addressed to your physical evaluation board to support a finding that you were fit
for duty. In finding that the reporting senior ’s letter to your physical evaluation board did not
contradict the contested fitness report, they noted that he expressly acknowledged, in the
report, that the  “problem” he cited  “has not prevented [you] from continuing to carry out
[your] routine medical duties at an area clinic in a fine manner.
the report of investigation dated 28 February 1996 (enclosure (10) to your application), that
your reporting senior be relieved as Group Surgeon  “due to a demonstrated lack of military
leadership” did not persuade the Board that he could not render a valid fitness report on you.

” The recommendation, in

Concerning the reporting senior ’s comment that  “[you were] not selected for a Navy
residency,” the Board did not agree with your contention that this comment was misleading,
nor did they agree with your argument that it amounted to a prohibited reference to a medical
condition. Finally, they found this comment did not violate the prohibition of Bureau of
Naval Personnel Instruction 1610.10, enclosure  
comment on  “Previous Failure of Selection. ” In this regard, they concluded that this
prohibition applied only to comment on a previous failure of selection for promotion.

(2), Annex N, paragraph N-14b against

The Board was not convinced that the contested fitness report penalized you for having
voluntarily sought professional help with your medical problem. They were likewise not
persuaded that the report was some kind of retribution against you for the portion of the
investigation report which reflected unfavorably on the reporting senior.

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 in mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record, the burden is on the
applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPARTMENT OF THE NAVY

NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE

MILLINGTON  TN 2805 

5-0000

1610
NPC-3 11
16 February 1999

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

NPC/BCNR Coordinator

 
(NPC-OOXCB)

Subj: L

USN,

Ref (a) BUPERSINST 1610.10 EVAL Manual

Encl: (1) BCNR File

1, Enclosure (1) is returned. The member requests the removal of his fitness report for the
period 3 1 January 1996 to 26 July 1996.

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

I_

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 his right to submit a
statement. The fitness report is an adverse report, however, the member indicated in block-46 he
did not desire to submit a statement.

b. Lieutena

lleges the grade he received in block-38 was based exclusively on a
medical condition and not on the actual performance of his duties or leadership abilities.
The
rational for the petition is that the report should be removed because comments in block-38 of the
report are prohibited by reference (a).
comments on medical conditions are prohibited, it also states that exceptions may be made where
necessary to clarify other information in the report.

While the fitness report instruction indicates that

c. A fitness report does not have to be consistent with previous of subsequent reports. It

represents the judgment and appraisal responsibility of the reporting senior during a particular
reporting period

d.

entions a command investigation that was completed on 28 February 1996.

The completed investigation was forwarded with recommendations concerning the reporting
senior to Commanding General, I Marine Expeditionary Forces, however the final results of the
investigation is not included in the member
’s petition.The fitness report was signed 5 months
after the investigation was completed.

e

provided two letters of support in his petition. While their comments add
insight and reflect favorably on the member, these individuals were not responsible for evaluating
the member’s performance.
3. We recommend retention of the report with the following portions of the last bullet be deleted
from the fitness report:

“and is currently being evaluated by a Medical Board. He is under treatment and counseling
for this problem and is on medication for depression. This is unfortunate, but has not
prevented him from continuing to carry out his routine medical duties at an area clinic in a 
manner”.

fine

Head, Performance
Evaluation Branch