D E P A R T M E N T  OF  THE  NAVY 

B O A R D   F O R   C O R R E C T I O N   O F   N A V A L   R E C O R D S  

2   N A V Y   A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

BJG 
Docket No:  4 169-0 1 
23 April  2002 

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. 

You  requested  removal of  your  nonjudicial punishment (NJP) of  4 December  1997, removal 
of  your performance evaluation reports for  16 March  1997 to  15 March  1998 and 
16 March  1998 to  15 March  1999, and  advancement to pay  grade E-6 from  the March  1998 
advancement cycle. 

A  three-member panel of  the Board  for  Correction  of  Naval  Records,  sitting in  executive 
session, considered  your application on  18 April  2002.  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 
20 November 2001 and 22 January  2002, copies of  which are attached.  They also 
considered  your counsel's  letters dated  25 June 2001 with  enclosures, 25 July 2001 with 
enclosure, and  23 March  2002. 

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  found that  your  NJP  should  stand.  They were unable to accept your  defense of 
"physical impossibility," as you  have not established that you  could not  have returned  on 
time,  had  you  prepared  for the entirely foreseeable possibility that your  Military Airlift 
Command (MAC) flight might be cancelled.  They did  not consider it objectionable that your 
command denied your request for extension of  leave. 

The Board  concluded that the performance evaluation report for  16 March  1997 to 
15 March  1998 should stand as well.  For the reasons stated above, they  found it 
unobjectionable that  this report cited the contested NJP.  They were unable to find you  were 
not  insubordinate.  In  this regard, they  particularly noted  that the statement at enclosure (3) 
to your application indicates "In the beginning of  the misunderstanding,  I wasn't  really 
listening or paying  attention to what  was going on."  If  you  are correct that the junior  officer 
to whom  you  were allegedly insubordinate "yelled" at you  without any consequences, this 
would  not  make it  improper for the report in  question to address your own  conduct toward 
that officer. 

In  finding that the contested report for  16 March  1998 to  15 March  1999 should  stand, the 
Board  particularly noted that the marks  assigned  were not adverse, so the narrative did  not 
have to  include specific justification for the marks.  They were not convinced that the sole 
purpose of  this report was  to deny  you  a chance to be  tested  for advancement. 

Finally, the Board  found no basis to advance you.  In  this connection, they  noted  that your 
NJP would  have been  sufficient basis for your command not  to allow you  to compete for 
advancement, without the contested adverse performance evaluation report for 
16 March  1997 to  15 March  1998.  Further, they  found insufficient basis to remove any  of 
the contested  matters from your record. 

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 

Enclosures 

Copy to: 
Gary R.  Myers,  Esq. 

DEPARTMENT O F  THE NAVY 

NAVY PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON TN 38055-0000 

16 10 
PERS-3 1 1 
20 November 2001 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Via:  PERSIBCNR Coordinator (PERS-OOZCB) 

Ref 

(a)  BUPERSINST  16 10.10 EVAL Manual 
(b)  Commanding Officer, SEAL Team FIVE ltr 16 10 N 1 of 9 April  1998 
(c)  Commanding Officer, SEAL Team, FIVE ltr 1610 N1 of 10 March  1999 

Encl:  (1 )  BCNR File 

1.  Enclosure  (1) is  returned.  The  member  requests  the  removal  of  his  original  performance 
evaluation  for the periods  16 March  1997 to  15 March  1998 and  16 March  1998 to  15 March 
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 reports  in  question  to be on 
file.  Both reports are signed by the member acknowledging the contents of each and his right to 
submit  a  statement.  The  member  indicated  he  did  not  desire  to  submit  a  statement  on  the 
evaluation for the period  16 March  1997 to  15 March  1998.  The member indicated he did desire 
to  submit a statement on the performance evaluation for the period16 March  1998 to  15 March 
1999.  The member's  statement  and reporting  senior's  endorsement is reflected  in his digitized 
record. 

b.  The reports in question are PeriodicIRegular reports. 

c. 

In  reviewing  petitions  that  question  the  exercise  of  the  reporting  senior's  evaluation 
responsibilities, we must determine if the reporting senior abused hislher 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  of  discretion,  he  must 
provided  evidence  to  support  the  claim.  I  do not  believe  Petty  Office 
done  so. 
Nothing provided  in the petition  indicates that  the reporting senior acted 
improper 
purpose or that the report lacked rational support. 

.  . 

d.  The performance trait  grades and comments on performance reflect the reporting senior's 
perception  of the  subordinate's  performance  and  may  be  influenced  by  incidents that  occurred 
during the period  of the report.  It  is perfectly  acceptable  for the reporting  senior to  evaluate  a 
member's  performance by  taking into accounts  facts that  have been  established through reliable 
evidence to the reporting senior's satisfaction.  In this case, the reporting  senior makes it clear in 
references  (b) and  (c) and his  endorsement  to  the member's  statement  his  reason  for  submitting 
the reports as they did.  The evaluations in question are procedurally correct. 

e.  Counseling of a member takes many  forms. Whether the member was given written  or oral 

counseling, Issued a Letter of Instruction (LOI), does not invalidate the performance evaluation. 

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

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

Performance 
Evaluation Branch 

DEPARTMENT O F  THE NAVY 

N A V Y  PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON TN 38055-0000 

1430 
Ser 811 
22 Jan 02 

4ORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS  (BCNR) 

Via:  Assistant for BCNR Matters  (PERS-OOXCB) 

Subi:  COMMENTS AND RECOMMENDATIONS IN THE CASE OF 

Ref: 

(a) BUPERSINST 1430.16E 

Encl : 

(1) BCNR file #04169-01 

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

2 .   Petty Officer-as 
evaluations and a Commanding Officer's Non-Judicial 
Punishment from his record.  He has requested advancement to 
IT1 based on the removal of these documents. 

requested removal of two 

3 .   PERS-311 has provided a memorandum of 20 November 2001, 
recommending the evaluations remain in the record as they are 
not illegal or improper.  The same rational must be accorded 
the Commanding Officer's Non-judicial punishment.  Since 
there are no changes to the record, no relief can be 
recommended regarding this petition.