DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

HD: hd
Docket No: 08668-00
10 August 2001

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

Secretary of the Navy

Subj 
:

Ref:

Encl:

LCDR
REVIEW OF NAVAL RECORD

JR., USNR

(a) Title 10 U.S.C. 1552

(1) DD Form 149 dtd 13 
(2) PERS-311 memo dtd 21 Mar 01
(3) PERS-86 memo dtd 2 Apr 01
(4) Subject’s naval record

Dee 00 w/attachments

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected by
removing or correcting the fitness report for 1 October 1996 to 12 April 1997, a copy of
which is at Tab A. He also impliedly requested removal of his failure of selection for
promotion before the Fiscal Year 
After Petitioner applied to this Board, he failed by the FY 02 Naval Reserve Commander
Line Selection Board.
It is presumed he also desires removal of this failure of selection.

(FY) 01 Naval Reserve Commander Line Selection Board.

2. The Board, consisting of Messrs. Bishop, Morgan and Shy, reviewed Petitioner’s
allegations of error and injustice on 9 August 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.

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

office having cognizance over fitness report matters has recommended approving Petitioner’s
(3), the NPC office having
request to remove the contested fitness report.
cognizance over Naval Reserve officer promotions has commented to the effect that his
implied request to remove his FY 01 failure of selection for promotion should be approved
as well.

In enclosure 

(2), the Navy Personnel Command 

(NPC)

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board finds the existence of
an injustice warranting removal of the contested fitness report and both of Petitioner
’s
failures of selection for promotion. They concur with enclosures (2) and (3) in finding that
the contested fitness report and his FY 01 failure should be expunged. Since the contested
report was in his record for the FY 02 promotion board, and his failure by that board must
be removed to restore him to the status he enjoyed before the FY 01 board as not having
failed of selection, the Board finds his FY 02 failure should be removed as well. In view of
the above, the Board directs the following corrective action:

RECOMMENDATION:

a. That Petitioner ’s naval record be corrected 

by.removing therefrom the following

fitness report and related material:

Date of Report

Reporting Senior

Period
From

of Report

To

97Apr12

USNR

96OctO 1

97Apr12

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 record be corrected further by removing his failures of selection

before the FY 01 and 02 Naval Reserve Commander Line Selection Boards.

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

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.

m W. DEAN  

PXIFFER

Executive Director

DEPARTMENT OF THE NAV

N AVY PERSONNEL

COMMAND

 

5720 INTEGRITY DRIVE

MILLINGTON TN  

38055-0000

Y

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERSBCNR Coordinator (PERS-OOZCB)

Ref: (a) BUPERSINST 1610.10 EVAL Manual

Encl: (1) BCNR File

1. Enclosure (1) is returned. The member requests the removal of his fitness report for the
period 1 October 1996 to 12 April 1997.

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 tile.

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 never received
the member’s statement and reporting senior ’s endorsement.

b. The report in question is a Detachment of Reporting Senior/Regular report. The member
alleges the report is unjust due to pending civil actions, which was not completed until 10 July
1998.

c. We cannot administratively make the changes requested by the member. Only the reporting
senior who signed the original report can submit supplementary material for file in the member ’s
record.

d.

Evaluating a subordinate performance and making recommendations concerning

In reviewing petitions that question the exercise of the

promotions and assignments are the responsibilities of the reporting senior. These duties are
accomplished in the fitness report.
evaluation responsibilities, we must determine if the reporting senior abused his/her discretionary
authority. We must see if there is any rational basis to support the reporting senior
’s decision,
and whether and whether the reporting senior actions were the result of improper motive.
However, we must start from the position that the reporting senior exercised his/her discretion
properly. Therefore, for us to recommend relief, the petitioner has to demonstrate that the
reporting senior did not properly exercise his/her authority.

In other words, the petitioner must

do more than just assert the improper exercise of discretion, he must provide reasonable evidence
to support the claim. I believe Lieutenant Command

done so.

e. Per reference (a), comments on civil proceedings are not to be refereed to until the trial
court concludes it. The member has provided a copy of the court order stating that all charges
filed against petitioner be expunged from the police and court records.

f. In view of the above, we believe the comments in the fitness report in question to be

inappropriate.

g. Failure of selection or enhancement of career opportunities alone is not sufficient reasons

to correct or remove a fitness report.

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

3. We recommend removal of the report in question as we cannot determine the member
on the member would have received.
performance trait mark or promoti

’s

Head, Performance
Evaluation Branch

.

_.

DEPARTMENT OF THE NAV

NAVY PERSONNEL COMMAND
MILLINGTON TN 38055-0000

5720 INTEGRITY DRIVE

Y

5420
PERS-86

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via :

Assistant for BCNR Matters  

(PERS-OOZCB)

Subj: RE

LC

D
us

SE OF

Encl:

( 1 ) BCNR File 08668-00 w/Service Record

returnin
1 . We are 
Lieutenant Commande

(1) with the recommendation that

s petition is granted.

We concur with the PERS-311 findings that the  

2.
question contained statements that were inappropriate, and
should be removed from his

official record.

FITREP in

Promotions, Appointments, and
Enlisted Advancement Division