DEPARTMENT OF THE N q V Y  

BOARD  FOR  CORRECTION  O F  NAVAL  RECORDS 

2  NAVY  ANNEX 

WASHINGTON  DC  2 0 3 7 0 - 5 1 0 0  

BIG 
Docket No:  1970-02 
18 August 2003 

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

Secretary of  the Navy 

REVIEW OF NAVAL RECORD 

- -- 

Ref: 

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

Encl: 

(1)  DD Form  149 dtd 4 Feb 02 wlattachments 
(2)  MTCS ltr dtd 26 Jul02 
(3)  LTJG ltr dtd  13 Sep 02 
(4)  PERS-311 memo dtd 24  Sep 02 
(5)  PERS-811 memo dtd  17 Oct 02 
(6)  Memo for record dtd 22  May  03 
(7)  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 his naval record be corrected by 
removing the enlisted performance evaluation report for  16 March to  1 June 2001.  A copy of 
this report is in enclosure (1) at Tab A.  He also requested  reinstatement of  the 
recommendation for his advancement to pay  grade E-6.  Finally,  he requested advancement to 
E-6. 

2.  The Board, consisting of Ms.  Davies and  Messrs.  McPartlin and  Zsalman, reviewed 
Petitioner's allegations of error and injustice on  22 May 2003, and pursuant to its regulations, 
determind that the corrective action indicated below shnrlld be takm  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 received the contested evaluation report while serving in his current pay 
grade, E-5.  It was  submitted on the occasion of  his transfer.  He received  marks of  "5.0" 

(Greatly Exceeds Standards), the highest of  five, in  "Professional Knowledge" ; "4.0" (Above 
Standards), second highest, in  "Quality of Work";  "3.0" (Meets Standards), third highest, in 
"Equal Opportunity, "  "Personal Job Accomplishment/Initiative" and  "Leadership" ; and  " 1 .Ow 
(Below Standards), the lowest, in  "Military Bearing/CharacterW and  "Teamwork."  The 
comments section included the following justification  for the two marks of  " 1.0": 

[Petitioner] demonstrated significant unreliability in  that he failed to inform his 
chain of  command of personal problems which  necessarily resulted in  his transfer 
and  unsuitability for submarine duty. 

In  "Promotion Recommendation," he was  marked by  himself in  the "Significant Problems" 
category, the lowest possible.  Finally, the reporting senior recommended against retention. 

d.  By  letter dated  1 November  2001 (Tab B to enclosure (I)), Petitioner submitted a 

rebuttal statement to the contested evaluation report.  This statement is not filed in  his official 
record, since the reporting senior has not endorsed it.  He stated that he informed his leading 
petty  officer and  leading chief petty officer of  his personal problems on  24 May 2001,  12 
days before 4 June 2001, the day his submarine was due to get underway.  He noted  that he 
was not given a copy of  the contested report until 24 October 2001, and  he asserted that he 
was not allowed to provide input.  He explained that his spouse attended approximately  10 
counseling sessions for anxiety during the year before May 2001.  He admitted that it was his 
responsibility to keep his chain of  command informed; however, as her  symptoms were mild, 
he did  not  report her condition to his chain of  command.  He stated that his spouse had  been 
unemployed  since December 2000 because of  injuries she had  suffered in  a car accident, 
which  put  a strain on  their finances.  He said that in  early May  2001,  his wife returned  to 
work; but  that on  23 May  2001, she was hospitalized for depression and panic attacks.  He 
stated she was diagnosed with  obsessive compulsive disorder and  anxiety, and  was placed on 
anti-depressant medication.  He asserted that on  24 May  2001, he informed his leading petty 
officer and  leading chief petty  officer of his spouse's problems, the effect they were having 
on  his finances and  emotions, and  his desire not  to deploy so that he could take care of  them. 
He said his intention was not to miss the entire deployment.  He reported that on 
29 May  2001,  his leading chief petty officer informed him  that he would  have to make the 
deployment, however, the command had  =ranged  for  some  of  his fellow sailors' wives to 
check on  his wife in  his absence.  Although he understood  his chain of command's attempt to 
help, he said he was disturbed  that his highly  sensitive personal problems had  been  discussed 
with  his peers.  He stated that on  30 May  2001,  his spouse's psychiatrist suggested that he 
should not  deploy with  his submarine, but  should be present to support his wife.  He said the 
leading chief petty  officer later told  him that the command's medical officer had advised the 
command there was no  need  for him  to  stay behind.  He stated that the conflicting 
information he was receiving placed even greater stress on  him.  He reported that on 
3 1 May  2001,  he filed for bankruptcy.  He alleged that on  1 June 2001, at a meeting  with  the 
executive officer (XO) and  the leading chief petty officer, the XO  said his wife was trying to 
manipulate the Navy,  and  that Petitioner was ruining his reputation at the command.  He said 
the XO informed him  that he was to make the deployment, and  the XO advised Petitioner not 

to take any further action.  Petitioner stated that a chaplain he had  consulted referred him  to a 
counselor at the Family Services Center, and  that Petitioner admitted to the counselor having 
had  suicidal thoughts because of his stress and  his belief  he was receiving no help.  He said 
he was  then  taken to the hospital and  subsequently transferred off the submarine.  He listed a 
number of accomplishments not documented in  the contested evaluation report.  Finally, he 
stated  "In retrospect, I did not handle my  problems exactly the way  I should have,  but  my 
emotional state at the time had  a significant impact on  my judgement." 

e. 

In  his application, Petitioner contends that the evaluation report in  question is wrong 
in  stating he did  not notify his command of his personal problems, because he did inform his 
leading petty officer and  leading chief petty officer on  24 May  2001, before the submarine 
was  scheduled to get underway on 4 June 2001.  He alleges that the withdrawal of  the 
recommendation for his advancement was punitive and  unjustified.  He states that the report 
was provided  to him  late, on 24  October 2001.  He argues that his command improperly 
waited  until  the end  of  October 2001 to send the message withdrawing his recommendation 
for advancement.  Finally, he says his leading chief and  division officer both  opposed the 
withdrawal of  the recommendation for his advancement, to no avail. 

f.  Petitioner was eligible for advancement to E-6 from the March 2001 advancement 
examination, and  he was frocked to E-6 in  July 2001, after his detachment on  1 June 2001. 
The contested evaluation report ending  1 June 2001, reflecting that he was not recommended 
for advancement, was  signed by  the reporting senior on  7 July 2001; but it was not signed by 
Petitioner until 24 October 2001.  The command prepared service record page  13 
("Administrative Remarks") entries dated  1 June 2001 (copies at Tab C to enclosure (I)), 
concerning the contested evaluation report and  the withdrawal of  the recommendation for 
Petitioner's advancement.  On  23 October 2001, the command from which  he had  been 
detached sent a message withdrawing his recommendation for advancement, thereby 
precluding  his advancement. 

g.  By  letter at enclosure (2), Petitioner's leading chief petty officer confirmed that in 

late May  2001, Petitioner came to him  regarding  his wife's condition and  the financial 
difficulties he was having.  He said that Petitioner did  not deploy because of  the suicidal 
thoughts he had  reported.  Finally, he said Pctitiuner  "left the ship in  [sic]  short nurice and 
may  have deserved performance marks that were lower than  his [immediately preceding] 
evaluation, but in  my  opinion, he did  not deserve a promotion recommendation of 
"Significant Problems" or a retention recommendation of  "Not Recommended". " 

h.  By  letter at enclosure (3), Petitioner's division officer stated that he had  served with 

Petitioner for years, and  that he considered Petitioner a reliable petty  officer.  He said that 
during May  2001, he became aware of  some personal problems Petitioner was having,  which 
resulted  in  his having been  hospitalized  as the submarine was getting underway.  He said he 
did  not believe Petitioner was trying to get out of  deploying, and  he said he did not 
recommend  withdrawing Petitioner's advancement recommendation.  He concluded that 
Petitioner is an  asset to the Navy,  and  that he would  gladly work  with  him  again. 

i. 

In correspondence attached as enclosure (4),  the Navy  Personnel Command  (NPC) 
Performance Evaluation Branch  (PERS-311) has commented to the effect that his request to 
remove the contested evaluation report should be denied.  This advisory opinion includes the 
following: 

... 

2.. .c.  The report is procedurally correct.  A performance evaluation is unique 
to the period being evaluated.  The reporting senior is charged with commenting 
on  the performance or characteristics of  each  member  under hislher command 
and determines what  material will be included  in a performance evaluation.  The 
contents and grades assigned on  a performance evaluation are at the discretion of 
the reporting senior.  The report represents the judgment and appraisal authority 
of  the reporting senior.  The reporting senior clearly explains in  the comment 
section of  the report his reason for writing the report as he did.. . 

j .  In  correspondence attached as enclosure (3, PERS-811, the NPC office having 

cognizance over enlisted advancements, has commented to the effect that Petitioner's request 
to reinstate his advacement recommendation and  grant him  advancement should be denied, 
since PERS-3 1 1 recommended that the contested evaluation report remain  in  his record.. 

k.  The memorandum for the record at enclosure (6) documents that PERS-811 advised 

that had  Petitioner been  advanced from the March 2001 E-6 examination, he would have 
received a time in  rate date of  1 July 2001 and an  effective date of  16 December 2001. 

CONCLUSION: 

Upon  review  and  consideration of  all the evidence of  record, and  notwithstanding the contents 
of  enclosures (4) and  (5), the Board  finds the existence of  an  injustice warranting complete 
relief.  The supporting statements convince the Board  that Petitioner did notify his chain of 
command of  his personal problems, and that withdrawing his recommendation for 
advancement was  punitive.  The Board  finds that he would have been  advanced to E-6, had 
his recommendation for advancement not been  withdrawn.  In  light of  the memorandum for 
the  1 ~ ~ 1 4  
1 July 2001 and an  effective date of  16 December 2001.  In  view  of  the above, the Board 
recommends the following corrective action. 

the k;ud finds he would  have b c a  advanced with  a time in  rate date of 

RECOMMENDATION: 

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

enlisted performance evaluation report and  related material: 

Date of  Report 

Reporting Senior 

7 Jul 01 

Period 
From 

of  Report 

To 

16 Mar  01 

1 Jun  01 

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 such 
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 the service record  page  13 
("Administrative Remarks") entries dated  1 June 2001, concerning the removed  report and  the 
withdrawal of  the recommendation for Petitioner's advancement to  E-6. 

d.  That Petitioner's record  be  further corrected by  showing he was advanced to E-6 

with  a time in  rate of  1 July 2001 and an  effective date of  16 December 2001. 

e.  That appropriate corrections be made to the magnetic tape or microfilm maintained 

by  the Navy  Personnel Command. 

f.  That any  material or entries 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. 

g.  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. 

It is certified that a quorum  was present at the Board's review and deliberations, and  that 

4. 
the foregoing is a true and  complete record of  the Board's proceedings in  the above entitled 
matter. 

ROBERT D.  ZSALMAN 
Recorder 

u 

Acting Kecoraer 

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

i 

Reviewed and  approved: 

DEPARTMENT OF THE NAVY 

NAVY PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON TN 38055-0000 

1610 
PERS-3 1 1 
24 September 2002 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Via:  PERS/BCNR Coordinator (PERS-OOZCB) 

Ref  (a)  BUPERSINST 16 10.10 E V A .  Manual 

Encl:  (1)  BCNR File 

1.  Enclosure (1) is returned.  The member requests the removal of his performance evaluation 
for the period 16 March 0 1 to 1 June 01. 

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  indicated  he  did  desire  to  submit  a  statement.  PERS-311 has not 
received the member's statement or the reporting senior's endorsement.  The member provided a 
copy of his statement with his petition; however, it is not suitable for filing, as it is not endorsed 
by the reporting senior. 

b.  The report in question is a Detachment of IndividualRegular report. 

c.  The report is pr-ucedurally correct.  A performance evaluation is unique to the period being 
evaluated.  The  reporting  senior  is  charged  with  commenting  on  the  performance  or 
characteristics of  each member under  hislher  command  and  determines what  material  will  be 
included  in  a  performance  evaluation.  The  contents  and  grades  assigned  on  a  performance 
evaluation are at the discretion of the reporting senior.  The report represents the judgment  and 
appraisal authority of the reporting senior.  The reporting senior clearly explains in the comment 
section of the report his reason for writing the report as he did. 

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

3.  We recommend the member's record remain unchanged. 

Performance 
Evaluation Branch 

DEPARTMENT OF THE NAVY 

NAVY PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON T N  38055-0000 

1430 
Ser 811/45/ 
17 Oct 02 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS  (BC'NR) 

Via:  Assistant for BCNR Matters  (PERS-OOXCB) 

Ref:  (a) BUPERSINST 1430.163 

Encl:  (1) BCNR file #01970-02 

1.  Based on policy and guidelines established in reference 
(a), enclosure  (1) is returned recommending disapproval. 

2.  Petty 0ffi-s 
performance evaluation for the period of 16 March 2001 to 1 
June 2001 and reinstatement of his advancement to MT1. 

requested removal of his 

3.  Based on the comments contained in PERS-311 memorandum of 
24 September 2002, the evaluation in question is valid and a 
favorable endorsement can not be granted regarding this 
petition. 

DEPARTMENT OF THE NAVY 

BOARD FOR  CORRECTION OF NAVAL RECORDS (BCNR) 

PERFORMANCE SECTION 
2 NAVY  ANNEX, SUITE 2432 
WASHINGTON, DC  20370-5100 

TELEPHONE:  (703) 614-2293 OR  DSN 224-2293 
FACSIMILE:  (703) 614-9857 OR  DSN 224-9857 

MEMORANDUM FOR  THE RECORD 

DATE:  22MAY03 

DOCKET NO:  1970-02 

PARTY I CALLED: 

TEL #:  NIA 

WHAT I SAID:  I ASKED C 
WOULD HAVE RECEIVED 
ADVANCEMENT CYCLE. 

TIR AND EFF DATE PET 
CED BY  THE MAR01 E-6 EXAM 

RECEIVED A TIR DATE OF  IJULOl ,'*m- AN EFF DATE OF  16DECO1. 

ah-&%. 
BRIAN J.  GEORGE