DEPARTMENT OF THE NAVY

BOARD FORCORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

HD: hd
Docket No: 06189-00
4 December 2001

C 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. You requested that your
failure of selection by the Fiscal Year (FY) 99 Active Medical Corps Captain Selection
Board be removed, and that your captain date of rank and effective date be adjusted to reflect
selection by the FY 94 Active Medical Corps Captain Selection Board.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 29 November 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
22 November 2000, 15 February and 11 June 2001, and the Medical Corps Officer
Community Manager dated 26 April 2001, copies of which are attached.The Board also

considered your counsel’s letters dated 17 April and 18 September 2001.

evidence submitted was insufficient to establish the existence of probable material error or
injustice.

After careful and conscientious consideration of the entire record, the Board found that the

The Board duly noted the substantial evidence indicating that one member of the FY 99
promotion board had knowledge of information, specifically, fitness reports and failures of
selection for promotion, whose removal from your service record had been ordered by the
Principal Deputy Assistant Secretary of the Navy (Manpower and Reserve Affairs). They
D--- dated 9 August 2000, that this
further noted the evidence, in the affidavit of Captain 
member expressed an opinion, before the FY 99 promotion board convened on
23 February 1998, that he was “highly skeptical” of the merits, of your application for the
relief eventually approved by the Principal Deputy Assistant Secretary. However, this

evidence, by itself, did not establish that the member in question could not be impartial in
considering you; or that the member considered, in his deliberations, the information of
which he had knowledge concerning material whose removal from your record had been
directed. They found that the member ’s knowledge of this information did not violate the
Principal Deputy Assistant Secretary
did not find the member ’s knowledge of this information violated the provisions of title 10,
United States Code, section 615(a)(2) as to what information about an eligible officer may be
“furnished to a selection board.

’s order, as it relates to selection boards. Finally, they

”

 

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.
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.

In this

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

copy to:
Mr. Benjamin L. Willey

DEPARTMENT OF THE NAV
NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

Y

1610
PERS-3 11
22 November 2000

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERS/BCNR Coordinator 

(PERS-OOZCB)

Subj: C

SN

Ref

BUPERSINST  16 10.10 EVAL Manual

(a) 
(b)  Memo 

from Principal Deputy Assistant Secretary of the Navy of 10 February 1997

Encl: (1) BCNR File

1. Enclosure (1) is returned.
period 11 August 1992 to 18 June 1993 and 1 September 1993 to 3 1 May 1994.

The member requests the removal of his fitness reports for the

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

a. A review of the member

to be on file.

’s headquarters record did not reveal the

fitness reports in question

 

b.  Reference (b) authorized the removal of the fitness reports in question. The fitness reports
PERS3 13D with a SECNAV memorandum dated 25 April 1997 and were

’s digitized record on 14 October 1997. Liaison with Selection Board

staff) selection board convened 23 February

were replaced by 
placed in the member
Support indicated the FY-99 Ca
1998 and adjourned 26 February 1

Head, Performance
Evaluation Branch

dEPARTMENT

 OF THE 

NAVY

B UREAU 

01= NAVAL PE

RS ON N E L

5720 INTEGRITY DRIVE

MILLINGTON TN  

38055-OOOO

MEMORANDUM FOR BCNR

Via:

Subj:

Ref:
Encl:

BUPERS/BCNR Coordinator

CAP

(a) Pers-311 memo of 
(1) BCNR File

US

N

22 Nov 00

Enclosure (1) is returned concurring with the findings and

1.
recommendations of ref (a) and recommending disapproval of CAPT

equest of a FY-94 backdate for the rank of

Captain.

A review of the member's record before the FY-99 Captain

2.
(Active) Staff promotion board revealed the fitness reports in
question were replaced with SECNAV memorandum dated 25 April
1997. Th
therefore
presented a substantially accurate and fair portrayal of his
Naval career.

e not reviewed by the board,
ecord

 was considered complete and

It is reasonable to consider the member's promotion to

3.
Captain during the FY-00 was due to additional professional
experience and qualifications,
competitive record
backdate to the rank of

Captain

.

thereby presenting a 

Recommend disapproval of the requested

for FY-94.

5420
Pers 
15 Feb 01

85

more

And Enlisted Advancements Division

Officer Promotions

DEPARTMENT OF THE NAV
BUREAU OF NAVAL PERSONNEL

6720 INTEGRITY DRIVE
MILLINGTON TN 380559000

Y

SN

submitted

542 0
Pers 85
11 Jun 01

request by

.
surate with

alidly

(Medical

Staff

MEMORANDUM FOR BCNR

Via:

Subj:

BUPERS/BCNR Coordinator

CAP

1. This Advisory Opinion is
BCNR for comment

on the application o

Q receive a backdated dat
selection by the FY-94 Active O-6 Staff (Medical Corps)
Promotion Selection Board.

PERS-85 Advisory Opinion is that

2 .
failed of selection (FOS) on the FY-99 Active O-6
Corps) Promotion Selection Board and thus should retain the 1
October 
for promotion by the FY-00 Active O-6 Staff (Medical Corps)
Promotion Selection Board.

2000 date of rank he earned by virtue of his selection

 H e

no person

ember of a

argues

otion,
s a voting

 

that the FY-99 board, which did not

was tainted by the assignment of

that the Assistant Secretary of the Navy

member of that board.

&  Reserve Affairs) (ASN(M&RA)) memorandum of 10

incorrectlyargues
(Manpower 

adverse
selection board

fitness reports or

considerin

e FY-99

boar

board cons

 memorandum does not support

ASN(M&RA)
the membership of future selection boards. The

 memorandum does not

The 

(M&RA)

The ASN 

4.
argument.
implication,
memorandum directed that two contested officer fitness reports
be removed.
reports be replaced with a memorandum stating that the officer
fitness reports
and other reviewing authorities;

It also directed that the removed officer fitness

"may not be made available to selection boards

reviewe
ible to be
.for

 promotion.

re

and that such boards may not

conjecture or draw any inference as to the nature of the
These actions were completed.
report."

members to determine

member might have

board-
 

 

.

The probability that a board 

The Secretary of the Navy has no obligation to survey all

5 .
selected or contemplated promotion board
the extent of their prior knowledge of any person on the
eligible list
prior knowledge of some person appearing before the board is
commonly understood, accepted, and addressed in the rules
governing selection boards
communities,
or to even have personally written officer fitness reports o
promotion candidates appearing before the board.
this , selection boards have a variety of instructions an
processes to ensure that only authorized information is
considered.
provides:

Secretary of the Navy Instruction 

it is common for board members to know individuals

. Particularly in smaller office

Because o
d

1420.1A

r

f

n

"Any board member who believes that he or she cannot in good

conscience

perform his or her duties as a member of the board without prejudice or
partiality has a duty to request relief by SECNAV from such duty.
request will be honored."

Such a

This passage tells board  

This language is also contained in the selection board's
precept.
r’equest relief if they feel they are unable to execute thei
board duties without prejudice or partiality
specifically instructed in the precept(appendix A,
about how to handle a record from which information has been
removed at the direction of 

ASN(M&RA):

 

members that they must

r

.

The board is
para

 2d)

"When discussing your own personal knowledge concerning the

professional qualifications of eligible officers, the board is reminded that
if personal remarks, based on a member's personal knowledge, could be
the member cannot discuss his personal knowledge or
considered adverse,
evaluation unless such matter is contained in the officer's record or other
material placed before the board in compliance with the law and Service
regulation.
fitness report via the Board for Correction of Naval Records, etc., the
member may not discuss his personal knowledge regarding the circumstances
which resulted in the removal of the report from the officer's record."

should an officer's record reveal the removal of a

In addition,

Selection board deliberations are secret, however, recorders

6 .
and/or other administrative assistants are present at all board
proceedings.
administrative assistants take an oath to follow the precept
All board members sign a document at the completion of the board

All of the board

 

members and all of the

.

certifying that they complied with the precept and instructions
provided by the Secretary of the Navy.

During the 

FY99

 O-6 Active Staff Board, all of the selection

7 .
members took the required oath, which indicates an
board 
understanding-of the precept and a solemn promise to follow th
precept
, all of the members signed th
certification indicating that they had complied with th
precept
No 
have alleged a
violations. I

board member or administrative support personnel
n
f

After the board

.

.

the board proceedings or precept
has evidence indicating tha
on board member, did not fulfil

lgation, he has not presented it in his petition

dence, he has baselessly impugned the integrit
nd the other  members of this board.
recommends BCNR disapprove the application by CAPT
backdate his date of rank for the grade of captain.

e

e
e

t

l
If h e

y

.

Active Officer Promotions,
Appointments And Enlisted
Advancements Division (PERS-85)

MEMO FOR 

BCNR COORDINATOR (PERS-OOZCB)

26 APR 01

MSC,

USN,

Medical Corps Officer

Head,

Medical Officer

(N131M

'QJ7

;,
 
$"v

10  

’

Community Manager  

ADVISORY OPINION ICO CAP

From:

Via:

Subj:

1.

The basis for this request for backdating CAPT

DOR to 1994,

seems to hinge on whether the

1999 board was unduly influenced by one board member who
had extensive knowledge of issues that had been ordered
expunged from his records.

There were six voting members of this board, including

2 .
the President.
break an officer during the board process. Decisions are

The vote of one member does not make or

oting members score a potential candidate.
non-selection only indicates that when

the scores from all board members were tallied his score
fell below the cut-off.

Board members are counseled that their deliberations

3 .
are based on the records before them, to include any
letters from the candidate.
records at hand is not to be part of the deliberations. To
bring anything from outside the records, into the
deliberations violates the precept and could constitute
misconduct and render the decisions of the Board invalid.

Anything not verifiable in the

4.
If the Board Member in question did discuss his
knowledge of information not in the record, and the
President of the Board allowed it to b
deliberations,
cause to contest the outcome, but so do all other
candidates that were before the board.
including its president,
violation of the precept.

then not only does

would have to be held liable for

All board members,

There is no evidence that any violation of the precept

5.
occurred.
that have no prior knowledge of any of the candidates being
presented is ludicrous to the extreme.

The idea of finding six senior medical officers

The presence of an

officer with prior knowledge about a candidate is not cause
for setting aside the decisions of the board.

Recommend that this request be denied.

6.
evidence in any of the documentation that one board member
inappropriately influenced the scoring of the other board
members.
Recorder have both signed affidavits to that effect when
the board reported out.

In 

fact the President of the Board and 

There is no

the 

Senior