DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

HD: hd
Docket No: 03894-01
15 October 2001

USNR

Dear Commander

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 12 October 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 opinion furnished by the Navy Personnel Command dated
14 June 2001, a copy of which is attached. The Board also considered your letter dated
27 August 2001 with enclosures.

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. Concerning the issue of exceeding the statutory 
18-month limitation
on delay of promotion, the Board found that had timely action been taken to terminate the
delay, you would have been removed from the promotion list earlier, rather than promoted.
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 

allofficial

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 NAV
5720 INTEGRITY DRIVE

BUREAU 

OF NAVAL P ER SON NE L

MILLINGTON TN 

38055-0000

Y

161 1
Ser 
14  Jun 01

834C/314

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS

Subj:

LCD

’ DC, USNR-R,

Ref:

(a) BCNR memo   5420  Pers-OOZCB of 7 Jun 01
(b) SECNAVINST  

1420.1A

Encl:

(1) BCNR file 03894-00

Reference  (a) requested comments and recommendations concerning

request to be reinstated on the FY-96 Active

1.
LCDR
Commander Staff promotion list.
under the purview of BCNR.

Enclosure (1) is returned as a matter

In his petition,

was unjustly removed
ist due to his
ases
this claim on
cretary of the Navy

LC
2 .
from the FY-96 Active C
excessive body fat composition.
the fact that his promotion was remov
even as the Secretary was revising the Navy physical fitness policy.
This information was obviously available to the Secretary at the time
the decision was made; yet the Secretary chose to remove the promotion
vice allowing the case to be processed under the new  guidance.
Prior
to the Secretary's action the Judge Advoca
determined that the 32-month delay of
LCDR
As the new p
not violate his rights.
become effective until 1 May 2000, LCD
consideration under the new program.
consistent with the policies and regulations in effect at the time of
the administrative action, therefore I recommend his record remain
uchanged.

promotion did
program did not
as not eligible for
removal was

1 of the Navy

LCDR

also questions the periodicity of Judge Advocate

3 .
General's opinion and makes interpretations with regards to the
current-Navy physical fitness program.
the Personal Performance and Security Division to comment on either
the Judge Advocate General's opinion or the Navy physical fitness
policy.
clarification.

I recommend you contact the appropriate office for further

It is not in the purview of

r---.
I 
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j

F--X,

4( 
.

Subj 

:

LT

DC, USNR-R

LCD

They
4 .
will be addressed in the order they were presented in reference (a),
numbered consistent with his paragraph numbering:

de several claims that require comment.

(1) As previously discussed,

his rights were not violated.

(2) As previously discussed (and presented in his request), OJAG

reviewed this requirement and determined that his rights were not
violated by exceeding the 18-month limit for promotion delays.

(3) The amount of time taken to review his case during each step

in the promotion removal process is irrelevant to his claim.
Processing of his case was not intentionally prolonged but, by his own
logic, prolonging his case could have only benefited him by creating
the possibility of processing it under the new guidance, which would
have resulted in his promotion.
Nonetheless, his case was processed
according to the guidelines in effect at the time.

-

suggestions regarding the Navy's physical
considered by those revising the program,

He was retained
nor were they a basis for actions of retribution.
while others were being separated because he challenged each step of
the process and great efforts were expended to ensure his rights were
not violated.

(5) Whether Petty Office

is certainly not a forgone conclusion.

enefited from his involvement

(6) The details and timing of

se had no impact
ness program.
on the details and timing of the revised 
Though processing for administrative separation due to failure of the
physical readiness test was ended, the other administrative
consequences were not arbitrary.
to motivate members to be physically fit through serious
administrative consequences for failure to do so.
strange, in that all officers whose promotions are delayed due to
failure of physical readiness tests are retained on active duty until
they pass the test or twice fail to select for promotion.

The intention of the new program is

His case was not

physica

(7) Entries into

ervice record were handled in

the same manner as the other officers in his community.
proceedings of the selection board are not made public, and there is
no requirement to make known to him the reason the board did not
select him.
promotion mandated his separation under the rules of DOPMA.

Whatever the reason, his second failure to select for

The

(8)
new instr
appropriately processed under the guidelines that existed at that
time.
the selection list is a moot point.

promotion had already been removed when the
.

Whether or not he would have been promoted had he remained on

Again, his promotion removal was

Subj 

:

(9) Whenever new standards are provided there must be an

Though senior Navy leadership had
effective date for those standards.
a vision of the new standards, they also knew that his case was being
processed before those standards would become effective.
case was processed under the standards that were in effect.

As such, his

(10)

as not retained "because of the critical

He was retained because
shortage of Oral and Maxillofacial Surgeons."
physical readiness failure was ended as a basis for his processing for
separation.
He was offered continuation on active duty, but he chose
separation.

(11) All of the informatio

s provided in this

request was available at the time his case was processed, and
considered in making the decision.
promotion should not be restored.
duty and his pay and bonuses should not be restored.

His
His rights were not violated.
He should not be returned to active

Director, Personnel Performance  
Security Division  

(PERS-83)

&