DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DOC 20370-5100

 

HD:hd
Docket No: 04195-02
13 December 2002

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

  

Subj: LCD RRO,
REVIEW OF NAVAL RECORD

 

Ref: (a) Title 10 U.S.C} 1552

Encl: (1) DD Form 149 dtd 15 Apr 02 w/attachments
(2) Record of Subject's Art 138 proceedings
(3) PERS-00H memo dtd 21 Aug 02
(4) PERS-311 memo dtd 12 Nov 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 the fitness report for 1 November 1998 to 16 April 1999. A copy of
the contested report is at Tab A.

2. The Board, consisting of Messrs. Grover, Neuschafer and Pauling, reviewed Petitioner's
allegations of error and injustice on 12 December 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, now a Naval Reserve lieutenant commander on inactive duty, received the
contested fitness report while she was serving in the same grade on extended active duty.
Her regular reporting senior |at the time, the Chief of Naval Operations (CNO), delegated to
his executive assistant (EA) his reporting senior authority for the report in question. This
report, submitted on the occasion of Petitioner's detachment, reflects per se adverse marks in
blocks 35 ("military bearing/character") and 42 ("promotion recommendation"). She was not
YIGE b2

compared with any other lputenant commander. The comments section, block 41, included
the following justification for the mark in block 35:

However, during this reporting period, she began living with a married male
officer also assigned to the staff. This officer left his wife and children to live
with [Petitioner]. As a result, she was relieved of her duties due to this
unacceptable conduct.

Block 41 also stated "[Petitioner] is not recommended for career milestones or promotion."
On the contested report, she indicated that she intended to submit a Statement, but no such
statement appears in her record with the report. ~

d. Petitioner maintains that she engaged in no improper conduct. She asserts she
merely permitted a fellow staff officer, a commander who had been confiding in her about his
severe marital difficulties, to sleep on the spare futon in her living room, while she was away
on travel, until his permanent change of station. She even took and passed a polygraph
examination to support her insistence that she did not engage in any type of sexual activity
with the commander. Her command did not take disciplinary action against her because, she
believes, they had no case to support such action. She contends that the fitness report at issue
was based on a flawed informal command investigation, which was conducted in an unfair
manner and did not address|the derogatory matters cited in block 41; and that the report was
used as an improper substitute for punishment. She further objects that after she had received
two outstanding fitness reports from her regular reporting senior, he delegated reporting
senior authority to his EA, although neither her duty station nor her billet had changed; and
she complains that her requests to discuss the contested report with either her regular
reporting senior or the delegated reporting senior were denied.

e. On 29 October 1999, Petitioner filed a complaint of wrongs under Article 138,
Uniform Code of Military Justice (UCMJ), against her delegated reporting senior, the EA,
seeking relief from the fitness report in question. On 16 December 1999, the general court-
martial authority, the Vice (NO, determined that no relief was warranted. He found no
merit in Petitioner's complaint about the denial of her requests to discuss the contested report
with the CNO or his EA, stating she was told the EA would meet with her for this purpose if
she first acknowledged and waived her rights against self-incrimination under Article 31,
UCMJ, but she did not request to waive her rights, nor did she waive them. The Vice CNO
also specifically rejected Petitioner's contention that the contested fitness report amounted to
punishment. On 15 February 2000, the Assistant Secretary of the Navy (Manpower and
Reserve Affairs) approved the action of the Vice CNO. Copies of Petitioner's complaint (less
enclosures) with two endorsements, the action of the Vice CNO, and the action of the
Assistant Secretary are at enclosure (2).

f. In correspondence attached as enclosure (3), PERS-00H, the Navy Personnel
Command (NPC) office having cognizance over equal opportunity matters, has commented to
the effect that Petitioner's request should be approved. They objected to the comments in
block 41 of the contested report, stating they do not explain why Petitioner's conduct resulted

in an adverse mark in bloc
which may or may not be

35; that the narrative "forces the reader to make assumptions,
ctual"; and that the comment “This officer left his wife and

children to live with [Petitioner]" relates to the male officer's conduct, rather than
Petitioner's, and “serves na purpose other than to provoke a negative reaction from the
reader." Finally, PERS-OOH concluded that the report at issue was used as punishment, as

Petitioner had contended.

g. In correspondence

attached as enclosure (4), PERS-311, the NPC office having

cognizance over officer fitness reports, also commented to the effect that the contested fitness

report should be removed.
Naval Personnel Instruction
delegated reporting senior's
all subordinate members in

They noted that the pertinent fitness report directive, Bureau of
1610.10, enclosure (2), Annex B, paragraph B-6.d.(3), states "A
authority may be limited to certain pay grades, but must include
those pay grades," yet PERS-311 had no record of receiving from

the reporting senior who signed Petitioner's report any additional fitness reports on other
lieutenant commanders. They further stated that the material submitted with Petitioner's
application “lends considerable doubt as to the fitness report [in question] being a fair
appraisal of [her] performance"; and that in view of the PERS-O0OH opinion at enclosure (3),
they "believe that justice may be better served" by removing the report.

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosures (3) and (4), 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 report and related material:

Date of Report

99Apr16

 

Period of Report
Reporting Senior From To
iGLISN 98Nov01l  99Apr16

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
inference as to the nature o

uthorities; and that such boards may not conjecture or draw any
the report.

 

YI QB 02
WIIBC

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 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. 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.

Doutmr 4. (bots

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

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

Reviewed and approved:

   

‘9/03
William A. Navas, J
Assistant Secretary pf the Navy
(Manpower and Reserve Affairs)

 

=)
DEPARTMENT OF THE NAVY

NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

 

1610
PERS-00H/346
21 Aug 02

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

 

Via: Assistant fot BCNR Matters, PERS-00ZCB

Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS IN CASE OF
LCD Regan USNR