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

HD:hd
Docket No: 01265-02
24 February 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 13 Feb 02 w/attachments
(2)      PERS-3 11 memo dtd 23 Sep 02
(3)      Memo for Record dtd 20 Feb 03
(4)      Subject’s naval record

1.       Pursuant to reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that her naval record be corrected by removing from the fitness report for 20 July to 31 August 1991 the marks in blocks 67 (“Judgment”) and 70 (“Personal Behavior”), as well the third and fourth sentences in the last paragraph of block 88 (“Comments”): “During this period of report, [Petitioner] was cited for driving under the influence of alcohol (DIM) during off-duty hours. Resolution of DUI charge pending as of the closing date of this report.” A copy of the pertinent fitness 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, 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 the fitness report in question is adverse, but she was neither advised of this, nor afforded the opportunity to make a statement as required by Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10. She contends that the report further violated this instruction by mentioning a civil proceeding before the finding of the trial court.
d.       The marks at issue, in blocks 67 and 70, both are “B,”the second best. Both blocks 80 (statement not desired) and 81 (statement attached) are marked “N” (not applicable). Block 82 shows Petitioner’s signature, stating” ‘I acknowledge that I have seen this report and have been apprised of my performance and right to make a statement.’ “ She did not make a statement.

e.       In correspondence attached as enclosure (2), the Navy Personnel Command office having cognizance over officer fitness reports has recommended partial relief, specifically, modification of block 88 by removing the second of the two contested sentences: “Resolution of DUI charge pending as of the closing date of this report.” This advisory opinion concludes the fitness report in question is not adverse, stating that while it reflects a decline of two letter grades from the preceding report, it was the first report Petitioner received from her new reporting senior. In addition, the opinion notes Petitioner signed block 82. It says the report at issue has been in Petitioner’s record for 10 years, and that she could have submitted a statement if she felt the report was unjust or in error. The advisory opinion states that the contents and grades in a fitness report are at the reporting senior’s discretion. Noting that the applicable directive is Naval Military Personnel Command Instruction (NAVMILPERSCOMINST) 1611. 1A, rather than BUPERSINST 1610.10, the advisory opinion acknowledges that NAVMILPERSCOMINST 1611. 1A, enclosure (1), paragraph 1-lO.b states “Proceedings which are pending or in progress may not be directly referred to in the report, but the reporting senior may take into account facts which have been established through reliable evidence to his or her satisfaction.” This is the basis for the recommendation to remove the sentence that directly refers to the pending charge.

f.       The memorandum at enclosure (3) documents Petitioner advised a member of the Board’s staff that she ultimately entered a plea of “nob contendere” to the DUI charge. The memo further reflects Petitioner said the fitness report for the pertinent period did not mention this, as the reporting senior, the same officer who had submitted the contested report, had been pressured to mention the matter of the DUI in the contested report; and he did not want it to be mentioned in two different reports.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board finds an error and injustice warranting partial relief, specifically, removal of both sentences at issue.

Contrary to the advisory opinion, the Board finds the fitness report in question is adverse, because of the contested narrative, but was erroneously marked “N” in blocks 80 and 81. Nevertheless, as Petitioner did have a chance to comment, the Board finds this is not a material error warranting corrective action. The Board agrees with the advisory opinion, enclosure (2), that the report improperly refers to a pending civil DUI proceeding, but they find the remedy proposed does not go far enough. They conclude that the reporting senior further erred by mentioning that Petitioner had been “cited” for DUI, when he did not have the final disposition of this matter.

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The Board finds that the marks at issue should stand, as they are the second highest possible; and the Board is not persuaded that the pending civil proceeding was a factor in the reporting senior’s decision not to mark Petitioner more favorably in the blocks concerned.

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

RECOMMENDATION:

a.       That Petitioner’s naval record be corrected to amend the fitness report for
20 July to 31 August 1991, signed by Commander   USN and dated
20 September 1991, by removing the third and fourth sentences in the last paragraph of block
88, which read as follows:

During this period of report, [Petitioner} was cited for driving under the influence of alcohol (DUI) during off-duty hours. Resolution of DUI charge pending as of the closing date of this report.

b.       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.

c.       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.

d.       That the remainder of Petitioner’ s request 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










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


                                                                        W. DEAN PFEIFFER


Reviewed and approved:   MAR 11 2003


Assistant General Counsel
(Manpower and Reserve Affairs)
Acting
































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DEPARTM ENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
1611
PERS-311
23 September 2002


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

Via:     PERS/BCNR Coordinator (PERS-OOZCB)

Subj:    LCDR

Ref:     (a) NAVMILPERSCOMINST l611.1A

End:     (1) BCNR File

1.       Enclosure (1) is returned. The member requests corrections are made to her fitness report for the period 20 July 1991 to 31 August 1991.

2.       Based on our review of the material provided, wç 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 her right to submit a statement. The member did not desire to submit a statement.

b. The report in question is a Periodic/Regular report. The member states the fitness report is adverse and she was not afforded the opportunity to make a statement and remove the letter grades in blocks 67 and 70 and delete two sentences in the last paragraph in bbock-88.

c. The report is not adverse as the member states. A fitness report consisting of a decline of two letter grades does not constitute and adverse report as this report was the first one from her new reporting senior. The member signed bbock-82 on 20 September 1991 that states; “I acknowledge that I have seen this report, have been apprised of my performance and right to submit a statement.”

d. We cannot administratively make the requested changes to blocks 67 and 70. Only the reporting senior who signed the original report may submit supplementary material for file in the member’s record.

e. The fitness report has been in Lieutenant Commander XXX record for over ten years. If the member felt the report was in error or unjust she could have submitted a statement for inclusion in her record.
f. A fitness report is unique to the period being evaluated. The reporting senior is charged with commenting on the performance or characteristics of each member under his command and determines what material will be included in a fitness report. The contents and grades assigned on a fitness report are at the discretion of the reporting senior.

g. Per reference (a), (the instruction in effect at the time of the fitness report) states; “Proceedings which are pending or in progress may not be directly referred to in the report, but the reporting senior may take into account facts which have been established through reliable evidence to his/her satisfaction.”

3.       We recommend retention of the fitness report with deletion of the following from the last paragraph in block-88:

“Resolution of DUJ charge pending as of the closing date of this report.”




                                             Performance
                                             Evaluation Branch

























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20 February 2003

MEMORANDUM FOR RECORD

Re:     

Today, I contact XXXX    to find out the final disposition of the DUI mentioned in the contested fitrept for 20 Jul to 1 Aug 91. She said she entered a plea of “nolo contendere,” but the fitrept for the pertinent period did not mention this, as the rep sr (same officer who had submitted contested rept) had been pressured to mention the matter of the DUI in the contested rept, and he did not want it to be mentioned in two different fitrepts.