DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

2 NAVY ANNE

X

WASHINGTON DC 20370 510

i

0

S

BJG
Docket No: 1125-01
31 May 2001

From:
To:

Chairman, Board for Correction of Naval Records
Secretary of the Navy

Subj:

Ref:

Encl:

(S

ICl 
REVIEW OF NAVAL RECORD

,U

6)

(1)
(2)
(3)
(4)
(5)
(6)

Title 10 U.S.C. 1552

DD Form 149 dtd 12 Feb 01 w/attachments
Subject’s ltr dtd 22 Feb 01 w/attachments
Ltr of support in case of Subject dtd 7 Mar 01
PERS-311 memo dtd 23 Apr 01
PERS-85 memo dtd 16 May 01
Subject’s naval record

1.
Pursuant to reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure
(1) with this Board requesting that his naval record be corrected by removing the enlisted
performance evaluation report for 1 December 1995 to 15 November 1996 (copy at Tab A to
consideratil3n for advancement to pay grade E-7.
enclosure (1)). He also requested remedial
He may submit to the Navy Personnel Command (NPC) (PERS-852) a request for a special
selection board on the basis of the corrective action indicated below.

 

2. The Board, consisting of Messrs. Adams, Schultz, and Zsalman, reviewed Petitioner
allegations of error and injustice on 24 May 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.

’s

3. The Board, having reviewed all the facts of
of error and injustice, finds as follows:

 

recorc pertaining to Petitioner ’s allegations

a. Before applying to this Board, Petitioner exhausted all administrative remedies

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

b. By letter at enclosure  

(2), Petitioner amended his request to ask for remedial

consideration for advancement to pay grade E-7.

C.

Enclosure (3) is a letter of support for Petitioner ’s case, signed by a Navy captain.

d.

In correspondence attached as enclosure

PERS-311, the NPC office having
cognizance over Navy performance evaluations, has commented to the effect that Petitioner
request to remove the report at issue has merit and warrants favorable action.

(4), 
 

’s

e.

In correspondence attached as enclosure

l?ERS-85, the NPC office responsible
for Navy officer promotions and enlisted advancements, has commented to the effect that the
removal of Petitioner ’s contested report would qualify him to submit a request for a special
selection board for advancement to pay g:-ade E-7.

 
(5), 

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosure  
following corrective action.

(4), the Board finds the existence of an injustice warranting the

RECOMMENDATION:

a. That Petitioner ’s naval record be corrected by removing therefrom the following

enlisted performance evaluation report and related material:

Date of Report

Reporting Senior

Period
From

of Report

To

14 Nov 96

EN

1 

Dee 95

15 Nov 96

b. That there be inserted in Petitioner

’s naval record a memorandum in place of the

removed report, containing appropriate identifying data concerning the report; that such
memorandum state that the report has been removed by order of the Secretary of the Navy in
accordance with the provisions of federal law and may not be made available to selection
boards and other reviewing authorities; and that such boards may not conjecture or draw any
inference as to the nature of the report.

C.

That appropriate corrections be made to the magnetic tape or microfilm maintained

by the Navy Personnel Command.

d. 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.

e. 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
Petitioner’s naval record.

xoss reference being made a part of
 

2

4.
Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
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.

ROBERT D. ZSALMAN
Recorder

,A. ’9
JONATHAN s. 
rig Recorder
Act 

.L 
RusKIN

/GL&&lL

Pursuant to the delegation of authority set out in

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.

Section 6(e) of the revised Procedures

Executive Director

DEPARTMENT OF THE NAV

NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

Y

MEMORANDUM FOR THE EXECUTIVE 

DIRECTO:R, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERS/BCNR Coordinator  

(PERS-OOZCB)

Ref: (a) BUPERSINST 1610.10  

EVAL 

Manual

(b) General Court-Martial Order 3-97 dated 10 September 1997
(

worn Affidavit dated 19 May 2000

Encl: (1) BCNR File

1. Enclosure (1) is returned. The member requests the removal of his performance evaluation
for the period 1 December 1995 to 15 November 1996.

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

a. A review of the member headquarters record revealed the report in question to be on file.
The member signed the report acknowledging the contents and his right, to submit a statement.
The member indicated he did desire to submit a statement. The member
’s statement and
reporting senior’s endorsement is properly reflected in 

the member’s digitized record.

b. The report in question is a Periodic/Regular report.

The member alleges the adverse

performance evaluation was submitted in error due to unsubstantiated spousal abuse.

c. In reviewing petitions that question the exercise of the reporting senior

responsibilities, we must determine if 
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 of discretion, he must provide
evidence to support the claim. I believe Petty 0

semor abused 

the reporting 

done so.

’s evaluation
his/her discretionary authority.

d. Based on the information provided in references (b) and (c), it appears that the report was

based on the personal circumstances of the member rather than the actual performance of his
duties during the reporting period. An investigation
 
conducted and the determination was made that Petty  
charges against him.

ber’s deficiencies was
not guilty of any of the

reg
Offc

e. Enhancement of chances for promotion alone, is not sufficient reason to remove a

performance evaluation.

f. The member proves the report to be unjust or in error.

While we are always reluctant to recommend removal of a performance evaluation, we

3. 
believe that justice may be better served by the removal of the 
statement, and reporting senior’s en

perfopance evaluation, member’s

Evaluation Branch

2

DEPARTMENT 

NAVY 

PERSONNEL 
5720 INTEGRITY
 

MILLINGTON TN

OF THE NAV

C~MIMAND
DFllVE
38055-0000

 

Y

MEMORANDUM FOR EXECUTIVE DIRECTOR,

RECORDS (BCNR)

BOARD FOR CORRECTION OF NAVAL

Via:

Assistant for BCNR Matters  

(PERS-OOXCB)

Subj:

COMMENTS AND RECOMMENDATION

Ref:

(a) BUPERSINST 1401.2

Encl:

(1) BCNR file  

#01125-01

Based on policy and guidelines  

1.
enclosure (1) is returned recommending approval.

es-zablished in reference (a),

PERS-311 memorandum of 23 April  

2.
of an evaluation for the period of 1  
15 November 1996.
Offic
of reference (a) and submit for  
Enlisted Selection Board.

record, he should 

Provided this 

eval-lation  is removed from Petty

thlen follow the requirements

consilderation  by a Special

21101 has recommended removal

December 1995 to