DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

                                                               HD:hd
                                                                                          Docket No: 00838-02
                                                                                          5 March 2003
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD
         Ref:     (a) Title 10 U.S.C. 1552
End:     (1) DD Form 149 dtd 23 Jul 01 w/attachments
(2)      PERS-OOH memo dtd 2 Aug 02
(3)      PERS-31 1 memo dtd 12 Nov 02
(4)      Subject’s naval record

1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, enclosure (1), with this Board requesting, in effect, that the applicable naval record be corrected by removing the fitness report for 1 October 1999 to 30 September 2000. A copy of this report is at Tab A.

2.       The Board, consisting of Ms. Nofziger and Messrs. Pfeiffer and Zsalman, reviewed Petitioner’s allegations of error and injustice on 21 February 2003. Pursuant to the Board’s regulations, the majority, Messrs. Pfeiffer and Zsalman, determined that the corrective action indicated below should be taken on the available evidence of record. The minority, Ms. Nofziger, recommended that Petitioner’s request be denied. 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 which were available under existing law and regulations within the Department of the Navy.

b.       Enclosure (1) was filed in a timely manner.

c.       Petitioner, an officer of the Judge Advocate General’s Corps (JAGC), received the contested fitness report in the grade of lieutenant commander. He contends that there was no rational basis to support the reporting senior’s decision to submit the report as written; that this decision was the result of improper motive and purpose; that the report as written was procedurally in error; and that the reporting senior abused his discretionary authority in

submitting it. He asserts that his reporting senior, who was also the reporting senior for another JAGC lieutenant commander, blamed Petitioner and the other officer for problems the reporting senior had experienced with the Office of the Judge Advocate General, General Litigation (Code 14). Petitioner notes that the contested report is the second of two written on him by the same reporting senior. He objects that the contested report contained higher trait marks than the earlier report, but the “Promotion Recommendation,” block 42, was downgraded from “Early Promote,” the highest of five possible, to “Promotable,” the third highest, without any stated justification. He alleges that when he discussed the report with the reporting senior, the reporting senior “gave no justification for the downgrade,” but indicated only that the promotion recommendation “‘.. .was the way it was going to be... ‘• “Petitioner notes that the report the other officer received for the same period covered by Petitioner’s contested report also reflected a mark of “Promotable,” and that this represented a decline from that officer’s previous report from the same reporting senior, where he had been marked “Must Promote” (second highest). Petitioner also complains that the reporting senior originally prepared reports, subsequently withdrawn, that ranked both Petitioner and the other officer below a junior lieutenant commander and a new lieutenant, neither of whom should have been evaluated with them. Petitioner further contends that the contested report is internally inconsistent, in that the “Promotable” mark contradicts the favorable comments and the other marks assigned. Finally, he objects that he did not receive the required mid-term counseling, nor did he receive any counseling about his performance. He provides a copy of the statement the other lieutenant commander submitted in support of that officer’s case before this Board, which it has not yet considered. He also submits a letter from Code 14, which states only “Enclosed please find application for correction of Naval [sic] records for [Petitioner].”

d.       The contested report at Tab A, block 8, showed Petitioner’s promotion status as “selected,” meaning he had been selected for promotion to commander, but had not yet been promoted. Block 30 reflected “NOT PE~,” indicating that mid-term counseling was not performed; and block 31 explained this by stating the counselor was not available. Petitioner received three marks of “5.0,” the highest of five possible; three of “4.0,” the second highest; and one of “not observed.” In block 42, he was marked “Promotable.” Block 43 showed he was compared with one other lieutenant commander, who was also marked “Promotable.” The block 41 narrative comments were highly commendatory, stating Petitioner has “the superior leadership potential to be one of the future JAG Corps leaders” and “He is one of the finest Naval [sic] officers that I have had the pleasure to command.” Petitioner signed the report in block 46, but he did not mark either of the blocks provided to show whether or not he desired to submit a statement. His record reflects no statement.

e.       Petitioner received his immediately preceding fitness report for 1 October 1998 to 30 September 1999, a copy of which is at Tab B, in the grade of lieutenant commander. While this was the same grade in which the contested report evaluated him, the preceding report showed his promotion status as “regular.” Block 42 was marked “Early Promote,” and block 43 showed Petitioner was compared with one other lieutenant commander, who was marked “Must Promote.” The other marks in this report were identical to those in the


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contested report, except block 34, “Equal Opportunity,” where he was marked “3.0,” third highest, whereas the contested report raised this mark to “4.0.”

f.       In correspondence attached as enclosure (2), PERS-OOH, the Navy Personnel Command (NPC) office with cognizance over equal opportunity matters, has commented to the effect that they did not find any allegation or evidence of unlawful discrimination based on race, ethnicity, national origin, sex, or religion. They stated this should not imply that the promotion recommendation given by the reporting senior was or was not fair, only that there was not apparent evidence of unlawful discrimination. They expressed the belief that this case warrants further investigation, to determine why Petitioner’s promotion recommendation was downgraded from “Early Promote” in his preceding fitness report to “Promotable” in the contested report, especially given the indication, in the contested report, that mid-term counseling was not performed; and the “extenuating circumstances” Petitioner alleged. They further stated “inconsistencies between the performance comments in block 41 and the promotion recommendation in block 42 of the [contested] fitness report raise questions that will require more information to reach a valid conclusion.”

g.       In correspondence attached as enclosure (3), PERS-3 11, the NPC office having cognizance over officer fitness reports, has commented to the effect that Petitioner’s request should be denied, as he has not proven the contested report to be in error or unjust. They stated the fact that the previous report from the same command and same reporting senior was an excellent report has no bearing on the fitness report in question, as a fitness report does not have to be consistent with previous or subsequent reports. They noted that the contested report was Petitioner’s first report as a promotion selectee, so it is not considered to reflect a downgrading of his promotion recommendation. They stated Petitioner has provided nothing other than his own statement in support of his petition, apparently overlooking that he had provided a statement from his fellow JAGC officer who has applied to this Board. Additionally, PERS-3 11 stated that if Petitioner believed the report at issue was improper, he could have filed a complaint of wrongful treatment under one of the processes set up for the purpose, Article 138 of the Uniform Code of Military Justice, the Navy Hotline, etc. Finally, they noted that Petitioner has not submitted a rebuttal to the contested fitness report, and they stated he may submit one to PERS-3 11, via the reporting senior.

h.       The applicable fitness report directive, Bureau of Naval Personnel Instruction 1610.10, enclosure (2), does not designate a “Promotable” mark in “Promotion Recommendation” as an “adverse” mark requiring narrative justification. The “Introduction,” paragraph 4, states a fitness report is considered “adverse” if it “shows a strong decline [undefined] in performance within the same pay grade.” Annex A, paragraph A-4, in the discussion of block 30, states “If [mid-term] counseling was not performed for any other reason [other than not being required because the counseling date did not fall within the report period], enter “NOT PERF,” and provide a brief explanation in block 31.”




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MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the advisory opinion from PERS-3 11, the majority of the Board finds an error and injustice warranting removal of the contested fitness report. The majority agrees with the advisory opinion from PERS-OOH in concluding that the report at issue is internally inconsistent. This inconsistency, combined with the unexplained dramatic drop in Petitioner’s “Promotion Recommendation” mark from the preceding report, gives the majority serious doubt about the fairness of the contested report. The majority feels Petitioner might well be correct in his belief that the reporting senior held him and his fellow officer responsible for the reporting senior’s problems with Code 14. In view of the above, the majority recommends the following corrective action.

MAJORITY RECOMMENDATION:

a.       That Petitioner’s naval record be corrected by removing therefrom the following fitness report and related material:
         Period of Report
Date of Report   Reporting Senior         From     To
15 Oct00                  1Oct99   3OSepOO


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 any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.

d.       That any material directed to be removed from Petitioner’s naval record be returned to this 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.

MINORITY CONCLUSION:

The minority of the Board substantially concurs with the PERS-3 11 advisory opinion in
finding the contested fitness report should stand. She is unable to find the reporting senior

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had improper reasons or lacked justification for lowering Petitioner’s “Promotion Recommendation” mark. Specifically, she is not persuaded that he held Petitioner and a fellow JAGC officer responsible for his problems with Code 14. Contrary to the majority of the Board, she does not consider the “Promotable” mark to be inconsistent with the rest of the contested report. She finds no requirement for the reporting senior to explain, in the narrative, the “Promotable” mark, as this mark was not adverse. She notes the contested report properly explains that mid-term counseling was not performed because the counselor was unavailable; and she is unable to find Petitioner received no performance counseling at all. In this regard, she notes the Board generally does not grant relief on the basis of an alleged absence of counseling, since counseling takes many forms, so the recipient may not recognize it as such when it is provided. Finally, the minority particularly notes that the only letter Petitioner provided from Code 14 merely forwarded his application without any affirmative comment in support. In view of the above, the minority’s recommendation is as follows:

MINORITY RECOMMENDATION:

a.       That Petitioner’s application be denied.

4. 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        JONATHAN S. RUSKIN
Recorder         Acting Recorder

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


W. DEAN PFEIFFER

MAJORITY REPORT MAR 11 2003

Reviewed and approved: __ Catherine Danova ______________________

Assistant General Counsel
(Manpower and Reserve Affairs)
MINORITY REPORT  Acting

Reviewed and approved: _________________________________












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DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND  1610
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000        PERS-OOH/345
                                                      2 Aug 02


MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION
OF NAVAL RECORDS

Via:     Assistant for BCNR Matters, PERS-OOZCB

Subj:    REQUEST FOR COMMENTS AND RECOMMENDATIONS IN CASE OF
         Ref:     (a)      PERS—OOZCB memo 5420 of 29 Jul 02
                  (b)      OPNAVINST 5354.1E Navy Equal Opportunity (EO) Policy

End:     (1) BCNR File 00838-02 with service record

1.       Reference (a) requested an advisory opinion in response to Commander request to remove from his permanent record a fitness report for the period 990CT01 to OOSEP3O.

2.       Upon case review, I did not find any allegation or evidence of unlawful discrimination based on race, ethnicity, national origin, sex, or religion. This statement should not imply that the promotion recommendation given by the reporting senior was or was not fair based upon job performance and merit; only that there was no apparent evidence of unlawful discrimination in the case files I reviewed.

3.       In accordance with reference (b), paragraph (7k(3)) “Commanding Officers shall ensure that career actions are consistent and fair across all grades.”

4.       I believe this case warrants further investigation to determine why Commander promotion recommendation was downgraded from “Early Promote” on his 99SEP30 fitness report to “Promotable” on his OOSEP3O fitness report, especially since mid-term counseling was not documente.d on the OOSEP3O fitness re ort and due to extenuating circumstances alleged by Commander
In addition, inconsistencies between the performance comments in block 41 and the promotion recommendation in block 42 of the OOSEP3O fitness report raise questions that will require more information to reach a valid conclusion.




Director, Navy Equal
Opportunity Office (PERS-OOH)








DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
                                             1610
                                                                                                   PERS-311
                                                                                                   12 November 2002

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

Via:     PERS/BCNR Coordinator (PERS-OOZCB)

Ref:     (a) BUPERSIINST 1610.10 EVAL Manual

End:     (1) BCNR File

1.       Enclosure (1) is returned. The member requests the removal of his fitness report for the period 1 October 1999 to 30 September 2000.

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 did not indicate whether he did or did not desire to submit a statement.

b.       The report in question is a Periodic/Detachment of Reporting Senior/Regular report. Commander XXXX claim his promotion recommendation was downgraded due to retribution, had no rational basis, and was the result of improper motivation.

c.       The fact that the previous report from the same command and same reporting senior was an excellent report has no bearing on the fitness report in question. A fitness report does not have to be consistent with previous or subsequent reports.

d.       The first report the member refers to was a Periodic/Regular report and the member promotion status was regular. On the second report, the one in question is a Periodic/Regular report with a promotion status of selected. Since this was the member’s first report as a selectee the report is not considered to be a downgrading of the member’s promotion recommendation.

e.       The member has provided nothing other than his own statement in support of his petition. If the member believed the report was improper he could have filed a complaint of wrongful treatment under one of the processes set up for that purpose, e.g. Article 138, Navy Hotline, etc.

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








3.       We recommend the member’s record remain unchanged. If the member wishes he may submit a statement. The statement must be forwarded to PERS-311 via the regular reporting senior who signed the original report.



                                                                        Perf o rmance Evaluation Branch


































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