DEPARTMENTOFTHE NAVY

BOARD FORCORRECTION

 

OFNAVAL RECORDS

2 NAVYANNEX

WASHINGTON DC 20370-5100

HD: hd
Docket No: 00257-02
16 October 2002

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

Secretary of the Navy

Ref:

Encl:

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

(1) DD Form 149 dtd 2 Jan 02 w/attachments
(2) PERS-OOH memo dtd 21 Mar 02
(3) PERS-3 11 memo dtd 5 Jun 02
(4) Subject’s ltr dtd 29 Sep 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 three fitness reports, for 1 April to 31 August 1999, 1 April to
30 September 1999 and 1 October 1999 to 12 September 2000 (copies at Tabs A through C,
respectively). He further requested that his Performance Summary Report 
accordingly.

(PSR) be corrected

2. The Board, consisting of Messrs. Rothlein, Swat-ens and Zsalman, reviewed Petitioner’s
allegations of error and injustice on 10 October 2002, 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. Enclosure (1) was filed in a timely manner.

C. Petitioner contends that all three contested reports reflect reprisal against him, as the

same reporting senior at Commander in Chief, Pacific Fleet (CINCPACFLT) submitted all
three reports after Petitioner had complained to the CINCPACFLT inspector general about
command practices he considered improper.

d. Specifically concerning the contested report for 1 April to 30 September 1999,

“X” in block 10 indicating it is a periodic report, was

Petitioner contends this report, with an 
essentially a photocopy of the contested report for 1 April to 31 August 1999, which has an
“X” in block 11 indicating it is a detachment of individual report. Both reports reflect
exactly the same marks and comments. Petitioner says his signature in block 46 was
transferred from the prior report ending 31 August 1999; and that he never saw the report
ending 30 September 1999 before it was submitted for file in his record. This report begins
on the same date as the contested report ending 31 August 1999; block 15 (ending date)
“99SEP30 ” typed in its place with the reporting senior
shows 
In both reports, the signatures of Petitioner and the reporting senior are
initials alongside.
dated 15 September 1999. The name  “Anita Hill ” is handwritten at the top of the first page
of the report ending 30 September 1999. Petitioner contends this is further evidence that not
only this report, but also the other two reports at issue were submitted in reprisal for his
having been a  “whistleblower. ”

“99AUG31 ” lined out, with 

’s

e. Regarding the disputed report for 1 October 1999 to 12 September 2000, Petitioner
alleges that his signature in block 32, acknowledging midterm counseling, is a forgery, as he
was not counseled. He says another person placed the 
do not intend to submit a statement. 
report) and 11 (detachment of individual).

“X” in both blocks 10 (periodic

“X” in the block 46 box indicating  “I

” This report reflects an 

f. With respect to the PSR, Petitioner objects that the entries for 1 April to

30 September 1999 do not match the report for that period.

In correspondence at enclosure 

(2), PERS-OOH, the Navy Personnel Command

g.

(NPC) equal opportunity office, has commented to the effect that the report for 1 April to
30 September 1999 should be removed, as the fact that 
“highly unusual and may indicate a form of reprisal.
information to determine if the other two reports at issue were based on reprisal.

”They stated they did not have enough

“Anita Hill ” is written at the top is

h.

In correspondence attached as enclosure 

(3), PERS-3 11, the NPC office having
cognizance over officer fitness reports, has commented that they concur with the PERS-OOH
recommendation to remove the report for 1 April 1999 to 30 September 1999. They noted
that removing this report would also correct the error in the PSR. They further
recommended modifying, rather than removing, the other two reports in question. In the
report for 1 April to 31 August 1999, they recommended moving the 
“X” from block 11
(detachment of individual) to block 10 (periodic), and changing block 15 (ending date) from
31 August 1999 to 30 September 1999. They recommended modifying the report for
1 October 1999 to 12 September 2000 by deleting the 
15 is not the ending date for a periodic report.

‘IX” from block 10, as the date in block

2

i.

The promotion recommendation in all three contested reports is 

third best. The two immediately preceding reports, from different reporting seniors and
1998),
different stations (8 January to 24 June 1997 and 25 June 1997 to 18 September 
marked Petitioner  “Early Promote, ” the best.

“Promotable, ” the

j+

Petitioner ’s letter at enclosure (4) renews his request to remove all three fitness
reports at issue. He states his petition may seem unusual if for no other reason than the
brazenness of the misconduct he is alleging on the part of those responsible for these reports.
He asks that this Board not be dismissive of his allegations. He expresses his belief that the
fact someone w
requested relie
general, and he maintains that 
top ” of the report ending 30 September 1999.

e of the reports, by itself, is enough to warrant the
three reports followed his complaint to the inspector

“my evaluator ’s true motives are literally scrawled over the

CONCLUSION:

Upon review and consideration, of all the evidence of record, the Board finds the existence of
an injustice warranting full relief.

The Board agrees with the advi
30 September 1999, mark
this report virtually duplica
have used Petitioner ’s signature on that report, which is dated 15 September 1999, well
before the 30 September 1999 ending date.

uld be removed. They are also troubled that
April to 31 August 1999, and might well even

concluding that the report for 1 April to

Contrary to the advisory opinions, they find the other two reports at issue should be removed
as well. They are satisfied that all three reports, written by the same reporting senior at the
same station, were tainted by reprisal for Petitioner
general.
recommendation, in the contested reports, from the two immediately preceding reports.

In this regard, they particularly note the dramatic decline in his promotion

’s complaint to the command inspector

Specifically concerning the report for 1 April to 31 August 1999, they find this report is
invalid on its face, as it was submitted on the occasion of Petitioner
not actually detach until 12 September 2000.

’s detachment, but he did

The Board considers the irregularities in the reports ending 31 August and 30 September 1999
effectively overcome the presumption of regularity for all the reports CINCPACFLT
submitted on Petitioner.

In view of the above, the Board recommends the following corrective action:

3

RECOMMENDATION:

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

three fitness reports and related material:

Date of Report

Reporting Senior

99Sep15

99Sep15

OOSep2 1

Period
From

of Report

To

i. 

99AprOl

99Aug3 1

99AprOl

OOSep30

b. That there be inserted in Petitioner ’s naval record ONE memorandum in place of the

removed reports containing appropriate identifying data; that the memorandum state that the
portion of Petitioner ’s fitness report record for 1 April 1999 to 12 September 2000 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 removed
material.

c. That Petitioner ’s PSR be corrected accordingly.

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
confidential file maintained
Petitioner ’s naval record.

a copy of this Report of Proceedings, for retention in a
for such purpose, with no cross reference being made a part of

4.
It is certified that a quorum was present at the Board
the foregoing is a true and complete record of the Board
matter.

’s review and deliberations, and that
’s proceedings in the above entitled

ROBERT D. ZSALMAN
Recorder

Acting Recorder

5. The foregoing report of the Board is submitted for your review and action.

Reviewed and approved:

NOV  

2 

2 

2092

DEPARTMENT OF THE NAV

NAVY 

PE RSO NN EL 

COMMAND

5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

Y

1610
PERS-OOH/339
21 Mar 02

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS

Via:

Assistant for BCNR Matters, PERS-OOZCB

Subj:

Ref:

REQUEST FOR COMMENTS AND RECOMMENDATIONS IN CASE OF
COMMAND

R

- 

I

:.

(a) BCNR PERS-OOZCB memo of 19 Feb 02
(b) OPNAVINST  

5354.1E (Navy Equal Opportunity

Manual)

(

(

PC  
.18
(d) SECNAVINST  
Protection)

5370.7B (Military Whistleblower

Encl:

(1) BCNR File 00257-02

1.

Reference (a) requested an advisory opinion in response to

equest that three fitness reports dated  
0SEP12, be deleted from his permanent record,

99AUG31,

\\ they were not generated in substantial compliance with

because 
applicable regulation".

In my opinion, there does not appear to be evidence of

2.
unlawful equal opportunity discrimination against

__

(c
reference 
unlawful equ

national origin, sex, or

In addition, per

s not believe that he experienced
scrimination.

3.

However, the information I have reviewed indicates CDR

ave suffered reprisal as described under the
stleblower Protection Act (ref (d)).
he notified the Navy Inspector General's office of
anagement at CINCPACFLT; N40 during the same time his
The fact that "Anita
99SEP30

99AUG31  fitness report was being  
Hill" is written at the top of his fitness report dated  
is highly unusual and may indicate a form of reprisal.

According to

prapared.

4.

I recommend that the fitness report dated  

99SEP30,  with

tten at the top, be deleted from his record. I

+

Subj:

REQUEST
COMMANDE

also recommend that his performance summary report is corrected
to reflect his actual fitness report performance traits.

99AUG31  and
I do not have enough information to

In reference to the fitness reports dated  

5.
OOSEP12,  respectively,
determine if these fitness reports were written based on
reprisal.
Accomplishment and Initiative"
99AUG31  and 
Further investigation may be required to reach a valid
determination.

It is noteworthy that the performance trait "Mission
was downgraded from a 4.0 on the

99SEP30 reports,

to a 3.0 on the 

OOSEP12  report.

Enclosure (1) is returned.

Opportunity Office
(PERS-OOH)

DEPARTMENT OF THE NAV

NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE

MILLINGTON TN 

38055-0000

Y

1610
PERS-3 11
5 June 2002

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERSBCNR Coordinator  

(PERS-OOZCB)

Ref:

(a) PERS-OOH memo 1610 PERS-00W339 of 21 March 2002

Encl: (1) BCNR File

1. Enclosure  (1) is returned. The member requests the removal of his fitness report for the
period 1 April 1999 to 3
to 12 September 2000 and correct his Performance Summary Report 

1999,l April 1999 to 30 September 1999 and 1 October 1999

1August

(PSR).

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. The reports are signed by the member acknowledging the contents of each and his right to
submit a statement. The member did not desire to submit a statement.

b.

The fitness report for the period 1 April 1999 to 3 1 August 1999 is an

AT/ADSW/Detachment  of Individual/Regular report. The fitness report for the period 1 April
AT/ADSW/Periodic/Regular report. The fitness report for the
1999 to 30 September 1999 is an
period 1 October 1999 to 12 September 2000 is a Detachment of Individual/Regular report. The
member alleges the reports were not generated in substantial compliance with applicable
regulations.

 

C. We concur with reference (a) concerning the member

recommend additional partial relief.

’s fitness reports. We also

3. We recommend the following in addition to removal of his original fitness report for the
period 1 April 1999 to 30 September 1999: Removal of this report would also correct the
member ’s PSR.

a. For the fitness report for the period 1 April 1999 to 3 1 August 1999. We recommend a 

“X”

be placed in block-10 and delete the 
vice 3 1 August 1999.

“X” in block-l 1, and change block-l 

5 to read 30 September 1999

b. For the fitness report for the period 1 October 1999 to 12 September 2000. We recommend

the “X” in block- 10 be deleted, as block- 15 is not the ending date for a periodic report.

Evaluation Branch