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NAVY | BCNR | CY2002 | 01759-02
Original file (01759-02.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
         WASHINGTON DC 20370-5100         HD:hd
                  Docket No: 01759-02
                  24 March 2003

 From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:

 REVIEW OF NAVAL RECORD (PARTIAL RECONSIDERATION)
Ref:     (a) Title 10 U.S.C. 1552

End:     (1) Counsel ltr dtd 14 Feb 02 w/attachments
 (2)      PERS-OOJ memo dtd 25 Jul 02
(3)      PERS-OOH memo dtd 21 Oct 02
(4)      PERS-3 11 memo dtd 3 Feb 03
 (5)      PERS-80 memo dtd 11 Mar 03
(6)      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 reports for 31 August 1994 to 31 January 1995 and 1 February 1995 to 31 January 1996, copies of which are at Tabs A and B. In Petitioner’s previous case, docket no 6524-99, decided on 11 May 2000, the Board granted removal of the contested fitness report for 1 February to 5 August 1996, but denied removal of the reports Petitioner has once again contested in his current application. Finally, in his current application, Petitioner further requested removal of his failures of selection before the Fiscal Year (FY) 01, 02 and 03 Staff Lieutenant Commander Selection Boards, so as to be considered by the selection board next convened to consider officers of his category for promotion to lieutenant commander as an officer who has not failed of selection for promotion to that grade.

2.       The Board, consisting of Messrs. Geisler, Pfeiffer and Zsalman, reviewed Petitioner’s allegations of error and injustice on 20 March 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.       In correspondence attached as enclosure (2), the Navy Personnel Command (NPC) office having cognizance over minority affairs matters has commented to the effect that the contested fitness reports should be removed.
c.       In correspondence attached as enclosure (3), the NPC office having cognizance over equal opportunity matters has commented to the effect that the contested fitness reports should be removed, and Petitioner should be considered in the promotion zone at the next regular lieutenant commander promotion board.
d.       In correspondence attached as enclosure (4), the NPC office having cognizance over fitness report matters has commented to the effect that the fitness reports at issue should be removed.
e.       In correspondence attached as enclosure (5), the NPC office having cognizance over active duty promotions has commented to the effect that Petitioner’s request to remove his failures of selection for promotion should be approved.
CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosures (2) through (5), the Board finds the existence of an injustice warranting the following corrective action.

RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected by removing therefrom the following fitness reports and related material:
          Period of Report
 Date of Report   Reporting Senior                  From     To
95Mar17  CAPT     SN       94Aug31  95Jan31
96Feb 15                  SN       95FebOl  96Jan31

 b.       That there be inserted in Petitioner’s naval record ONE memorandum in place of the two reports to be removed pursuant to recommendation a above, as well as the report for 1 February to 5 August 1996 whose removal was directed previously, containing appropriate identifying date; that the memorandum state that the portion of Petitioner’s fitness report record for 31 August 1994 to 5 August 1996 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.
2
c.       That Petitioner’s record be corrected further by removing the memorandum previously filed in his naval record to replace the removed report for 1 February to 5 August 1996.
d.       That Petitioner’s record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to lieutenant commander as an officer who has not failed of selection for promotion to that grade.
e.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s that no such entries or material be added to the record in the future.

f.       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                                                     JONATHAN S. RUSKIN
 Recorder                                                                        Acting Recorder

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.
3


 25 July 2002


MEMORANDUM FOR   EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BCNR PETITION ICO LT    

Ref:     (a) BUPERSINST 1610.10

 End:     (1) BNCR PETITION PACKAGE DOCKET NO.
1.       Board for Correction of Naval Records (BCNR) requested PERSOOJ opinion on the case of ~ has petitioned to removed performance reports for the periods 94AUG31 to 95JAN31 and 95FEBO1 to 96JAN31.
2.       After review of enclosures, I have found the following:
a.       A serious question can be raised as to the motives of the immediate supervisor, CAPT XXX Though he is not the reporting senior, remember, it is his input that would have the most weight in evaluating While the evidence provided is mostly circumstantial, they ring enough into doubt as to whether a fitness report with his input can be free of bias. As a reminder the decision to remove the previous report was based on the fact that there was enough evidence there was injustice in his previous fitness reports from the same immediate supervisor and reporting senior. This demonstrates that this particular command had a capacity for evaluating members unjustly.
b.       A review of the new evidence from independent sources brings to question the credibility of immediate supervisor.
1)       CAPT XXX stated “Having spent about one year closely associated with XXX it is my opinion that he would have reduced the performance evaluations of a young African American chaplain based solely upon that person’s race.” XXXX comments are based on professional interaction and surrounded CAPT XXXX interaction with XXXX USNR. This is a strong statement when another      senior chaplain in the Navy can make a signed statement that XXXX had the capacity of bias in fitness reports.
         
         2)                Ms. XXXX GS-l2 Site Manager at Fleet and Family Support Center, Naval Base Ventura County, provided a signed statement under penalty of perjury on 11 November 2001 discussing her interactions with XXXX. Within this statement she has remarked that XXXX made sexual advances towards her and made statements that “he could destroy chaplains’ careers if he wanted to.” Again, XXXX while circumstantial, personal interaction demonstrate an abuse of authority.
         
         3)       LT XXXX made a statement on 26 November 2001 under penalty of perjury. His experience was that he was the only chaplain removed from his rotation at Port Hueneme as soon as XXXX arrived. His was the only African American chaplain at the command. XXXX the only other African American chaplain that we can measure actions. His interaction is consistent with that of which again demonstrate the potential for discrimination.


4)       LCDR XXX made a statement on 17 January 2002 regarding his experience with XXXX  He interacted with XXXX both professionally and socially. His statement is “Based upon my close association with Chaplain XXXX during that time period, it is my opinion that Chaplain XXXX possessed the character of a man who would lower personnel evaluations based upon his own racial prejudices.” GS-13) Director of Military Pay, U.S. Navy Personne Support Activity, Pacific states that he referred to a other African American chaplain, Chaplain wi h a racial epithet. This points to the fact incident with isolated.
3.       Remember that a biased fitness report does not necessarily have to be overt. The basis for injustice may be in the grades in blocks 33-39, in the promotion recommendation in block 42, or future recommendations in block 40. While there are no direct comments in section 41 that point to injustice, pattern of behavior points to serious issues in discrimination and abuse of authority. The removal of a fitness report will not necessarily benefit the member. It will just give him an opportunity to be judged through his other performance reports versus performance reports from an individual who has demonstrated the capacity for making racially insensitive remarks on multiple occasion ns and demonstrated a capacity for abusing his authority.
4.       Due to the doubt raised that the nature of these reports are not racially biased, based on the new evidence I strongly recommend the remove of the fitness reports for the periods dated 94AUG31 to 95 AN31 and 95FEBO1 to 96JAN31.






 Captain, U.S. Navy
 Special Assistant for Minority
Affairs to the Chief of Naval
Personnel (Pers-OOJ)




DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE


 I MILLINGTON TN 38055-0000
 1610
          PERS-OOH/354
 21 Oct 02
MEMORANDUM FOR EXE       UTIVE DIRECTOR, BOARD FOR CORRECTION F NAVAL RECORDS
Via:     Assistant for BCNR Matters, PERS-OOZCB
Subj:    REQUEST FOR OMMENTS AND RECOMMENDATION USNR, ~
          Ref:     (a)      BCNR per         -OOZCB memo of 17 Sep 02
                  (b)      OPNAVINS         5354.1E (Navy Equal Opportunity Policy)

 End:     (1) BCNR File 01759-02 w/service record
1.       Reference (a) requested an advisory opinion in response to request to remove fitness reports dated 94AUG31 to
 95JAN31 and 95FEBO to 96JAN31 from his permanent record, due to alleged racial bias of his immediate supervisor.
also requests that failures of selection for promotion to Lieutenant Command r are removed and he is considered in—zone at the next regular Lieutenant Commander promotion hoard.
2. After reviewing enclosure (1), I believe that - immediate supervisor r did not foster a work environment that provided equal opportunity to all personnel regardless of race, ethnicity, gender, national origin, sex, or      religion. I also believe that not receive effective leadership and mentoring from Per reference It's quite possible that two fitness reports in question were negatively impacted by racial bias Per reference (b), “incidents of unlawful discrimination or sexual harassment cover a wide range of behaviors, from verbal comments to physical acts, and can be subtle or overt.” Although CAPT reporting senior, he would have provided substantial input to the reporting senior, in preparation of ‘ fitness reports.        

3.       I recommend XXXX fitness reports dated 94AUG31 to 95JAN31 and 95FEBO to 96JAN31 be removed from his permanent record and that he be considered in-zone at the next regular









Subj:    REQUEST FOR


Lieutenant Command r promotion board. Enclosure (1) is returned.





                                                                        Commander, U.S. Navy
                                                                        Director, Navy Equal
                                                                        Opportunity Office, PERS-OOH
2
                                    DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
                                             1610
                                                                                                   PERS-311
                                                                                                   3 February 2003


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

Via:     PERS/BCNR Coordi ator (PERS-OOZCB)
         Subj:

Ref:     (a) PERS-3 11 memo f 13 January 2000
 (b)      PERS-OOJ mem of 25 July 2002
(c)      PERS-OOH memo 1610 PERS-OOH/354 of 21 October 2002
End:     (1) BCNR File

1.       Enclosure (1) is returned. The member requests reconsideration for removal of his fitness report for the period 31 August 1994 to 31 January 1995 and 1 February 1995 to 31 January 1996

2.       Based on our review of the material provided, we find the following:

a.       As requested, we have reviewed the member’s petition and reconsidered our decision in reference (a).

b.       Based on the comments provided in references (b) and (c), we believe the fitness reports in question should be removed from Lieuten

3.       We reconimend relief based on the additional material provided.



                                                                        Performance Evaluation Branch









DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
 ii
 5720 INTEGRITY DRIVE
 MILLINGTON TN 38055-0000
 5420
 PERS-80
 11 MAR 2003

MEMOPANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Via:     Assistant for BCNR Matters (PERS-OOZCB)
          Subj:    REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF
 LT
          Enc1     (1) BCNR File 01759-02
          1.       Forwarded, recommending approval.
         2.       Concur with the recommendations of PERS-311

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