DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                             2 NAVY ANNEX

               WASHINGTON DC 20370-5100


      BJG
                                                       Docket No: 8710-00
                                                       31 May 2001


                                     USN


    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.

    A three-member panel of the Board for Correction of Naval Records,
    sitting in executive session, considered your application on 31 May
    2001. 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 13 March and 4
    and
    23 April 2001, copies of which are attached. They also considered your
    rebuttal letter dated
      21 May 2001.     --

    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 13 March 2001 in concluding that
    your contested fitness report should stand. Since they found no defect
    in your performance record, and you have not been selected for
    advancement to senior chief petty officer, they had no basis to advance
    you. In light of the contested fitness report, they were unable to find
    that your commanding officer acted improperly in withdrawing her
    recommendation for your appointment as a warrant officer. Therefore,
    they concluded that the action to terminate your selection for such
    appointment should stand. 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




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 inj ustice.

                                 Sincerely,



                                        W.    DEAN PFEJFFER
                                        Executive Director

Enclosures








                       DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                            5720 INTEGRITY DRIVE
                                  MILLINGTON TN 38055~0000


                                                         1610
                                                              PERS-311
                                                              13 March 2001


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

    Via:    PERS/BCNR Coordinator (PERS-OOZCB)

    Subj:   ITC(SW)

    Ref:    (a) BUPERSINST 1610.10 EVAL Manual

    End:    (1) BCNR File

    1. Enclosure (1) is returned. The member requests the removal of his
    fitness report for the period 16 September 1998 to 15 September 1999.

    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 his right to submit a statement. The member
    indicated he did desire to submit a statement. No statement has been
    received by PERS-3 11. Per reference (a), Annex 5, paragraph S-8, the
    member has two years from the ending date of the report to submit a
    statement.

       b.   The fitness report in question is a Periodic/Regular report. The
    member alleges the downgrade of his Performance Trait mark in Military
    Bearing/Character from “5.0,’ to “2.0” as a result of the charges
    exonerated of as unjust and disproportionate substitute punishment

       c.   The fitness report appears to be procedurally correct. In
    reviewing petitions that question the exercise of the reporting senior s
    evaluation responsibilities, we must determine if the reporting senior
    abused his/her discretionary authority. For us to recommend relief, the
    petitioner has to show that either there is no rational support for the
    reporting senior’s action or that the reporting senior acted for an
    illegal or improper purpose. The petitioner must do more than just
    assert the improper exercise ot~ discretion, he must provide evidence to
    support the claim. I do not believe Chief as done so. The fitness report
    itself represents the opinions of the reporting senior. Nothing provided
    in the petition shows that Commander, the reporting senior, acted for
    illegal or improper purposes or that the report lacked rational support.
      d.    Chief      claims that the performance trait grades and
comments on performance
    were predicated on a NJP proceeding in which he was found not guilty.
                                The NJP is not
unchanged.


mentioned in the report. The reporting senior commented on the member’s
down trend and his lapse of judgment. Reference (a), Annex N, Paragraph N-
13 .a states “Comments may be included on misconduct whenever the facts are
clearly established to the reporting senior’s satisfaction.” Although Chief
 found not guilty of the charges against him at NJP, it does not mean that
misconduct did not occur. The reporting senior may comment or assign grades
based on performance of duty or events that occurred during the reporting
period.

   e.  The member filed an Article 138, Complaint of Wrongs to support his
contentions. The Deputy Assistant Secretary of the Navy (Personnel
Programs) determined that Commander Navy Region Northwest (GCM’s) findings
was correct and approved the findings.

   f.  The commendatory correspondence and other documentation concerning
Chi performance is noted, however, this material does not show that his
performance was incorrectly evaluated in the fitness report.

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

3. We recommend the member’s




                            Head, ‘Performance
                            Evaluation Branch
















                                      2


                           DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                            5720 INTEGRITY DRIVE
                                  MILLINGTON TN 38055-0000


                                                   1131
                                                         Ser 811D/1U143
                                                         04 Apr 01

      MEMORANDUM FOR   EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL
                       RECORDS

      Via:  PERS/BCN Coordinator (PERS-OOZCB)
      SUBJ  JR,

      REF:  (a) OPNAVINST 1420.1

      1.    In accordance with reference (a), a selectee for appointment is
      no longer qualified for appointment if the Commanding Officer
      withdraws the selectee’s recommendation due to a loss of confidence
      in the member.

      2.    The Deputy Chief of Naval Operations (Manpower and Personnel)
      determined that Chief was no longer qualified to accept his
      appointment based upon the Commanding Officer’s loss of confidence in
      the member and removed his name from the FY-00 Chief Warrant Officer
      selection list.

      3.    If eligible, the member may apply for the FY-03 Limited Duty
      Officer/Chief Warrant Officer selection board.

      4.    If you have any questions regarding this contacted at
      commercial



I

                                        In-Service Procurement Branch Head
                                                                                    5













                           DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                             5720 INTEGRITY DRIVE

        MILLINGTON TN 38055-0000
      1430
                                                                 Ser 85/325

         23Apr 01


      MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL
                          RECORDS (BCNR)

      Via:  Assistant for BCNR Matters (PERS-OOXCB)

      Subj: COMMENTS AND RECOMMENDATIONS IN THE CASE OF


      Ref:  (a) BUPERSINST 1430.16D

      End:  (1) BCNR file #08710—00

      1.    Based on policy and guidelines established in reference (a),
      enclosure (1) is returned recommending disapproval.

      2.       Chief as petitioned for advancement to Senior Chief Petty
      Officer due to a Fitness Report he believes to be unjust. PERS-311
      memorandum of 13 March 2001 recommends Chief
      records remain unchanged.

      3.       Chief record has been reviewed by the Fiscal Year 2002
      selection board for selection to Senior Chief Petty Officer. He was
      not selected for advancement. Since there are no recommended changes
      to his record, he would not be eligible for consideration by a Special
      Board. In view of these circumstances, no relief is recommend in this
      case.




                                       By Direction