DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

HD: hd
Docket No: 00953-01
5 December 2001

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj: L T

, MSC, US

REVIEW OF NAVAL RECORD

Ref: (a)

Title 10 U.S.C. 1552

Encl:

(1)
(2)
(3)
(4)
(5)

DD Form 149 dtd 19 Jan 01 w/attachments
PERS-61 memo dtd 30 Apr 01
PERS-3 11 memo dtd 24 Jul 01
Subject’s ltr dtd 5 Nov 01 w/enclosures
Subject’s naval record

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be
corrected by modifying the fitness report for 1 February to 15 July 1999 to reflect  ‘Early
- individual). A
Promote” vice “Must Promote” in block 42 (promotion recommendation 
copy of the fitness report is at Tab A. Petitioner further impliedly requested removal of her
failure of selection before the Fiscal Year 02 Staff Lieutenant Commander Selection Board,
s‘o’ as to be considered by the selection board next convened to consider officers of her
category for promotion to lieutenant commander as an officer who has not failed of selection
for promotion to that grade.

2. The Board, consisting of Messrs. Shy and Whitener and Ms. Moidel, reviewed
Petitioner’s allegations of error and injustice on 29 November 2001, and pursuant to its
regulations, 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

available under existing law and regulations within the Department of the Navy.

b. Petitioner alleged that the fitness report in question was marked “Must Promote”

rather than “Early Promote” in reprisal for her protected communication. In correspondence
attached as enclosure 

(2), PERS-61, the Navy Personnel Command 

(NPC) office having

cognizance over professional relationships, has recommended approving her request for
(IG), U. S.
fitness report modification on the basis of the finding by the Inspector General 
Naval Forces Central Command that her reprisal allegation was substantiated.

C.

In correspondence attached as enclosure 

(3), PERS-3 11, the NPC office having

cognizance over fitness report matters, has recommended that Petitioner ’s record remain
unchanged. They acknowledged that the IG, U. S. Naval Forces Central Command found
her allegation of reprisal to be substantiated; however, they further noted that both the Naval
IG and the Department of Defense IG nonconcurred with this finding.

d. Enclosure (4) is Petitioner ’s rebuttal to the PERS-3 11 advisory opinion at enclosure

(3). She takes issue with the basis on which the Naval IG and the Department of Defense IG
nonconcurred with the reprisal finding of the IG, U. S. Naval Forces Central Command.

CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the
(3), the Board finds the existence of an injustice warranting
PERS-311 opinion at enclosure 
full relief. They substantially concur with the PERS-61 opinion at enclosure (2) in finding
that the fitness report at issue should be corrected as requested. In light of the input from
the Naval IG and Department of Defense IG, the Board does not consider it entirely clear
that the contested fitness report was in reprisal. However, they find it more appropriate to
grant the requested fitness report relief, rather than take the chance of letting a miscarriage
of justice go uncorrected. The Board is satisfied that the uncorrected report harmed
Petitioner’ s chances for promotion.
corrective action.

In view of the above, the Board directs the following

RECOMMENDATION:

a. That Petitioner ’s naval 

ret
1 February to 15 July 1999, signed
follows:

ing her fitness report for
USN on 13 July 1999, as

(1) Block 42 (promotion recommendation 

”
Promote” to “Early Promote. 

- individual): Move 

“X” from  “Must

entry from 
” 

(2) Block 43 (promotion recommendation 
“0” and “Early Promote” from 

1” to 

- summary): Change  “Must Promote”

“0” to 

” 1. 

”

b. That Petitioner ’s record be corrected so that she will be considered by the earliest

possible selection board convened to consider officers of her category for promotion to
lieutenant commander as an officer who has not failed of selection for promotion to that
grade.

2

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 the 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.

Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
4.
Records (32 Code of Federal Regulations, Section 723.6(c)) 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.
-d 42&J
&cw
icv
JONATHAN S. 
Acting Recorder

ROBERT D. ZSALMAN
Recorder

. 
./
RUSKIN

Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures

5.
of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.

DEPARTMENT OF THE NAV

NAVY 

PERSONNEL COMMAN
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

Y

D

1610
PERS-61/215
30 Apr 01

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS

Via:

Assistant for BCNR Matters, PERS-OOZCB

Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS IN CASE OF

LIEUTENAN

MSC, USNR,

Ref:

(a) BCNR PERS-OOZCB memo of   23 FEB 01
(b) OPNAVINST  

5354.1D Navy EO Manual

Encl:

(1) BCNR File 06686-99

Reference (a) requested an advisory opinion in response to

1.
Lieutenant
change the "Must Promote" to "Early Promote") for the period
ending July 1999,
due to reprisal involving her EO complaint.
Enclosure (1) is returned.

~request for a corrected fitness report (to

A Navy Inspector General investigation of 17 Feb 00

2.
(-appended to reference (a)) substantiates
reprisal and recommends that she receive a corrected fitness
report, be given the opportunity to attend lost training and
that corrective action be taken against the responsible
management officials.
has been a violation of OPNAVINST  

Based on those findings, it appears there

5354.1E.

report of

3. Therefore, it is my opinion tha
reco
be changed and that the other
executed.

s fitness report
isted above be

Director, Professional
Relationships Division
(PERS-61)

DEPARTMENT OF THE NAV

NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

Y

1610
PERS-3 11
24 July 2001

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERSBCNR Coordinator (PERS-OOZCB)

Subj 

:

Ref: (a) BUPERSINST 1610.10 EVAL Manual

(b) COMUSNAVCEN ltr 5041 Ser 
(c) DON, Naval Inspector General ltr

OOIG/335 of 17 February 2000

5041/19990726 Ser 

 

N62/2365 of 21 December 2000

Encl: (1) BCNR File

1. Enclosure (1) is returned. The member requests changes be made to her fitness report for the
period 1 February 1999 to 15 July 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 her right to submit a
slatement. The member indicated she did desire to submit a statement. PERS-311 has not
received the member ’s statement and the reporting senior
’s endorsement.The member provided
a copy of her statement with her petition; however, it is not suitable for filing.

b. Per reference (a) Annex S, paragraph S-8, the member has two years from the ending date
of the  report  to submit a statement. Paragraph S-8.b states;
“Submission of statement. For
reports on E-5 and above, address the statement to Naval Personnel Command via the renortinq
senior who submitted the original report, or in the case of a Concurrent report, via the concurrent
and regular reporting seniors.

”

c. The report in question is a Detachment of Reporting Senior/Regular report. The member

alleges the fitness report is inaccurate, unjust, and unfair and wrongly submitted because of
reprisal. The member further alleges the report as being adverse.

d.

Lieutenanw requesting we change her promotion recommendation  from  “Must
Promote ” to “Early Promote. ”We cannot administratively make the requested change to the
promotion block on a fitness report. Only the reporting senior who signed the original fitness
report may submit supplementary material for file in the member

’s record. The report is

procedurally correct. It is not adverse as the member states and the report was not required to be
referred to the member for a statement.

e. A fitness report is unique to the period being evaluated. Evaluating a subordinate

performance and making recommendations concerning promotion and assignments are the
responsibilities of the reporting senior.

’s

f. The member filed an EO complaint to support her contentions. Although reference (a)

substantiated the member ’s allegations, reference (b) indicated the allegations of reprisal were
not substantiated.

g. A fitness report does not have to be consistent with previous or subsequent reports. Each

fitness report represents the judgment of the reporting senior during a particular period.

h. Whether or not Lie

given written or oral counseling, issued a Letter of

Instruction 

(LOI) does not invalidate a fitness report.

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

3. We recommend the member ’s record remain unchanged.

Evaluation Branch

2