DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

HD:hd
Docket No: 08656-01
27 January 2003

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

Secretary of the Navy

Subj 
:

LCDR
REVIEW OF NAVAL RECORD

Ref: (a)

Title 10 U.S.C. 1552

Encl:

Dee 01 w/attachments

(1) DD Form 149 dtd 7 
(2) PERS-834C memo dtd 7 May 02
(3) PERS-3 11 memo dtd 23 Aug 02
(4) Subject’s counsel’s undtd ltr recvd 13 Nov 02
(5) 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 removing the fitness report for 1 November 2000 to 3 August 2001 (copy at Tab
A) and all documentation concerning his civil arrest for public intoxication on 6 April 2001
(copy at Tab B).

2. The Board, consisting of Messrs. Chapman and Morgan and Ms. 
Petitioner’s allegations of error and injustice on 24 January 2003, 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.

Nofziger, reviewed

The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations

3.
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.

In correspondence attached as enclosure 

(NPC) office having cognizance over personnel performance and security matters,

Command 
has commented to the effect that they had no objection to removing the contested
documentation relating to Petitioner’s arrest. They noted that the civil court concerned had
issued an expungement order stating the arresting agency had lacked probable cause for the
arrest.

(2), 

PERS-834C,  the Navy Personnel

c.

In correspondence attached as enclosure 

(3), 

PERS311, the NPC office having

cognizance over fitness report matters, commented to the effect that in light of enclosure 
they had no objection to removing the contested fitness report. This opinion superseded an
earlier version, which had recommended against removing the contested report.

(2),

d. Petitioner ’s counsel ’s letter at enclosure (4) notes that PERS-834C has no objection

to removing the arrest documentation, in view of the expungement. Counsel further asserts
that the arrest did not merit reporting, and that the expungement only provides additional
justification for removing it from Petitioner
original version of the PERS-3 11 opinion. This opinion was revised after enclosure (4) had
been submitted.

’s record. Finally, counsel takes issue with the

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosures (2) and 
following corrective action.

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

RECOMMENDATION:

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

fitness report and related material:

Date of Report

Reporting Senior

OlAug03

LCDR
USN

Period of Report
From
To

OONovOl

OlAug03

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 the
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 Petitioner ’s naval record be corrected further by removing the 

“Report of Final

Civil Action in Case of [Petitioner]
intoxication on 6 April 2001, and all related documents.

” dated 11 July 2001, concerning his arrest for public

d. That any material or entries inconsistent with or relating to the Board

recommendation be corrected, removed or completely expunged-from Petitioner
that no such entries or material be added to the record in the future.

’s
’s record and

2

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 cross reference being made a part of
Petitioner ’s naval record.

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

JONATHAN S. 
Acting Recorder

RUSKIN

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

Executive 

Direc

DEPARTMENT OF THE NAVY

NAVY PERSONNEL COMMAND
MILLINGTON  TN 38055-0000

5720 INTEGRITY DRIVE

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via:

Subj:

Ref:

Encl:

,PERS/BCNR Coordinator (PERS-OOZCB)

REQUEST FOR COMMENTS AND RECOMMENDATIONS
LCDR
USN,

(a) MILPERSMAN 1611-010

(1) BCNR File

1611
PERS 
7 May 

834C/284
02

IN CASE

OF

Enclosure (1) is returned.

1.
of enclosure (1) and determined the arguments presented by
petitioner are with merit,
enclosure (1) should be removed.

PERS-83 has reviewed the contents

and adverse information contained in

LCDR
pub1

2.
for 
contendere
fined LC

ation.

 LC

50 which was suspended for 90 days.

he was arrested 6 Apr 01
tered a plea of 
Court of Nueces County

nolo

The original offense LCD

Reference (a) requires the filing of civil convictions in an

3.
officer's permanent record if the misconduct is punishable under
the UCMJ by confinement of one year or more or a punitive
discharge.
considered a violation of UCMJ Article 133, conduct unbecoming
an officer and a gentleman,
greater than a year and a punitive discharge.
disorderly conduct was considered to be a violation of UCMJ
Article 134, which is punishable by confinement of six months.
LCDRW@&@Ws
have been an offense to which filing under reference (a) was
made.
violation was apparently not taken into account.

Counsel was partially correct; however, the Article 133

 counsel argued that public intoxication should not

was convicted of was

which is punishable by confinement

His drunk and

Subsequently, LCDR

4.
23 Aug 01 from the Nueces County District Court.
appears to be valid on its face and states the ground for
expunction w
to arrest LC

arresting agency lacked probable cause
r the charged offense.

received an Order of Expunction on

This order

Subj:

REQUEST FOR COMMENTS AND RECOMMENDATIONS
LC

us

IN CASE

OF

As the civilian conviction which formed the basis for the

5.
adverse matter filed in
PERS-83 poses no objection to

record is no longer valid,

its removal.

Commander,
Director,
And Security Division

U.S. Naval Reserve
Personnel Performance

DEPARTMENT OF THE  

N AVY PERSONNEL COMMAN
MILLINGTON  TN 38055-0000

5720  INTEGRITY DRIVE

NAVY
D

1610
PERS-3 11
23 August 2002

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERS/BCNR Coordinator  

(PERS-OOZCB)

Subj: LC

Ref:

BUPERSlNST 16 10.10 EVAL Manual
PERS-

(a) 
(b) 
(c) 834C memo 1611 

PERS-834U284 of 7 May 2002

Encl: (1) BCNR File

1. Enclosure (1) is returned. The member requests the removal of his fitness report for the
period 

1 November 2000 to 3 August 2001.

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 his right to submit a
statement. The member indicated he did desire to submit a statement. PERS-311 has not
received the member
Annex S, paragraph S-8, the member has two years 
statement.

’s statement and the reporting senior

from the ending date of the report to submit a

’s endorsement. Per reference (a),

b. The member argument that the report is adverse and was not referred to him for a

statement by separate correspondence is without merit.
August 2001 and indicated his desire to submit a statement.

The member signed the report on 3

c. The report in question is a Detachment of Individual/Regular report. The member alleges
the report contains material error, is incomplete, unjust, and does not comply with procedural
requirements.

d. A fitness report is unique to the period being evaluated. The reporting senior

with commenting on the performance or characteristics of all members under his command and
determines what material will be included in a fitness report. The grades and comments on
fitness report reflects the reporting senior
influenced by incidents that occurred during the period of the report.
paragraph N-13 states;

“Comments may be included on misconduct whenever the facts are

’s perception of the member

Reference (a), Annex N,

’s performance and may be

’s is charged

Ui/IU/UJ

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US:SS  

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clearly established to the reporting senior ’s satisfaction.” It should 
did not receive a mark of 
revealed the member received a mark of  “2.0” in block-35.

,also be noted that the member
“1.0” in Military Bearing/Character. The member’s official record

e. Counseling of a member takes many forms. Whether or not the member was given oral or

written counseling or issued a Letter of Instruction 

(LOI) does not invalidate a fitness report.

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

3. However, based on the information provided in reference
removal of the fitness report.

 

(b), we have no objection of the

_-
P&%ortnance 
Evaluation Branch

2