DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

HD:hd
Docket No: 05323-01
14 February 2002

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

Secretary of the Navy

Subj 

:

LCD
REV

Ref: (a)

Title 10 U.S.C. 1552

Encl:

(1)
(2)
(3)
(4)
(5)
(6)

DD Form 149 dtd 26 Jun 01 w/attachments
NAVIG N66 memo dtd 29  
PERS-OOH memo dtd 13 Aug 0 1
PERS-3 11 memo dtd 20 Nov 01
NPC 
Subject’s naval record

P8OlC memo dtd 21  

Dee 01

Dee 99 w/enclosures

Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,

1.
filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be
corrected by removing the fitness report for 1 November 1997 to 14 September 1998, a copy
She also requested removal of her failures of selection by the Fiscal
of which is at Tab A.
Year (FY) 01 and 02 Line Commander Selection Boards.
be granted a special selection board for FY 01 on the basis that her record before the regular
board improperly included the contested fitness report.

In addition, she requested that she

2. The Board, consisting of Messrs. Frankfurt and Schultz and Ms. Gilbert, reviewed
Petitioner’s allegations of error and injustice on 14 February 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
of error and injustice, finds as follows:

’s allegations

a. Before applying to this Board, Petitioner exhausted all administrative remedies

available under existing law and regulations within the Department of the Navy.

b. The contested fitness report is not adverse: the comments are entirely favorable, and

the reporting senior marks Petitioner  ‘Early Promote, 
promotion. However, the report includes only one mark of 
marks of  “4.0” (second best) and one of  “3.0” (third best).

” the highest recommendation for

“5.0” (highest); it reflects four

C.

Petitioner contends that her reporting senior took retributive action against her and
She alleges that the contested
others in the form of unwarranted low performance marks.
fitness report was in reprisal for her testimony in the investigation of a complaint against the
reporting senior under Article 138, Uniform Code of Military Justice. She further alleges
that she was the victim of racial bias.

d.

In support of her allegations, Petitioner cites the command climate assessment

requested by the Naval Inspector General (NAVIG), at enclosure (2). In their cover letter at
enclosure 
leadership, was assessed as being well below par, which will support petitioners
many were unfairly treated in the evaluation process.

(2), NAVIG states  “The command climate, under the [reporting  

seniorI’s

 

”

’ claims that

e.

In correspondence attached as enclosure  

(3), the Navy Personnel Command (NPC)

office having cognizance over equal opportunity matters has recommended that her request
be granted in full, to include a special selection board.

f.

In correspondence attached as enclosure  

(4), the NPC office having cognizance over

fitness report matters has commented to the effect that the contested fitness report should be
removed on the basis of the information at enclosure (2).

g-

In correspondence attached as enclosure  

(5), the NPC office having cognizance over
active duty promotions has commented to the effect that if Petitioner ’s request to remove the
contested fitness report is approved, her request to remove her failures of selection for
promotion should be approved as well, and she should be granted a special selection board
for FY 01. They stated it is reasonable to consider that the fitness report at issue may have
been influential in the board ’s deliberations and may have affected the competitiveness of
Petitioner’s record among her peers.

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
finds the existence of an injustice
contents of enclosures  
warranting partial relief, specifically, removal of the contested fitness report and Petitioner
failures of selection before the FY 01 and 02 Line Commander Selection Boards.

(5), the Board  

(3), (4) and  

(2), 

’s

Despite the NPC recommendations, in enclosures (3) and  
the Board finds that Petitioner ’s request for a special selection board should be denied. In
this regard, they note that the regular FY 03 Line Commander Selection Board is imminent,
scheduled to convene on 19 February 2002. Further, they
by a regular selection board, with a corrected fitness report record and status as an officer
who has not failed of selection for promotion, will provide her adequate relief.

(5), for a special selection board,

find that Petitioner ’s consideration

 

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

2

RECOMMENDATION:

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

fitness report and related material:

Date of Report

Reporting Senior

Period
From

of Report

To

98Sep14

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 Petitioner’s record be corrected so that she will be considered by the earliest

possible selection board convened to consider officers of her category for promotion to
commander as an officer who has not failed of selection for promotion to that grade.

d. 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.

e. 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.

f.

That the remainder of Petitioner ’s request be denied.

Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
4.
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
Recorder

-JONATHAN S.  
Acting Recorder

RUSKIN

3

Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures

5.
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.

~/t W. DEAN PFEIFFER

Executive Director

4

DEPARTMENT OF THE NAV

NAVY 

PERSONNEL COMMAN
5720 INTEGRITY DRIVE

MILLINGTON TN  

38055-0000

Y

D

1610
PERS-OOH/247
13 Aug 01

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS

Via:

Assistant for BCNR Matters, PERS-OOZCB

Subj: REQUEST FOR COMMENTS AND RECOMMENDTIONS

LIEUTENANT COMMANDE

IN C

4'
d

Ref:

(a) BCNR PERS-OOZCB memo of 17 Jul 01
5354.1E Navy EO Manual
(b) OPNAVINST 

Encl: (1) BCNR File 05323-01

Reference (a) requested an advisory opinion in response to

1.
Lieutenant Command
the fitness report
"failure to select" from her official record, and to be
considered by a special selection board for promotion to
Commander, due to discrimination by Captai
Commanding Officer at Naval Telecommunications Master
Station(NTCMS), Honolulu, HI.

request to delete from her record
ov 97 through 14 Sep 98, removal of

Enclosure (1) is returned.

her

package reveals
investigation, including a
was completed in August 1999.

2.
A review of Lieutenant Commande
that a Navy Inspector General (IG)
Command Climate Assessment report,
In that report (enclosure 10 to reference (a)), numerous
problems with the Commanding Officer were cited and the command
climate at NTCMS was rated "unsatisfactory."
\\no clear
instances of gender or racial discrimination" were found,
another Navy IG memorandum (enclosure 14 to reference (a))
written to the Board for Correction of Naval Records (BCNR)
states:

While

“A significant number of officers, who were evaluated by
the Commanding Officer during her three year assignment,
may petition for removal of their FITREPS... The command
climate under the CO's leadership, was assessed as being
well below par, which will support petitioners' claims
that many were unfairly treated in the evaluation process."

3.

Based on that assessment,

I recommend Lieutenant Commander

itness report for the requested period and the

Subj: REQUEST FOR COMMENT
LIEUTENANT COMMANDE

"failure to select" be removed from her record, and that she
considered by a Special Selection Board for promotion to the
grade of Commander.

be

Navy Equal
Opportunity Division
(PERS-OOH)

2

DEPARTMENT OF THE NAV

NAVY 

PERSONNEL COMMAN
5720 INTEGRITY DRIVE

MILLINGTON TN  

38055-0000

Y

D

1610
PERS-3 11
20 November 2001

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERS/BCNR Coordinator (PERS-OOZCB)

Subj: LCD

Ref: (a) BUPERSINST 1610.10 EVAL Manual

(b) DON Inspector General ’s letter 50441 Ser 

N6/1582 of 9 September 1999

Encl: (1) BCNR File

1. Enclosure (1) is returned. The member requests
the period 1 November 1997 to 14 September 1998.

the removal of her original fitness report for

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 her right to submit a
statement. The member did not desire to submit a statement.

b. Lieutenant Comman

est’s the removal of her fitness report because of the
. Evaluating a subordinate officer

’s performance and

appearance of racial bias an
making recommendations concerning promotion and assignment are the responsibilities of the
reporting senior. In reviewing petitions that question the exercise of the reporting senior
evaluation responsibilities, we must determine if the reporting senior abused his/her discretionary
authority. We must see if there is any rational basis to support the reporting senior
and whether the reporting senior actions were the result of improper motive. However, we must
start from the position that the reporting senior exercised his/her discretion properly. Therefore,
for us to recommend relief, the petitioner has to demonstrate that the reporting senior did not
properly exercise his/her authority. The petitioner must show that the reporting senior acted for
an illegal or improper purpose.
exercise
Comman

The petitioner must do more than just assert the improper
must provide evidence to support the claim. I believe Lieutenant
e so.

’s decisions,

’s

c. Based on reference (b), we believe the fitness report for th
September 1998 should be removed from Lieutenant Comman

.

1 November 1997 to 14

ecord.

d. The member proves the report to be unjust or in error.

3. We recommend removal of the fitness report in question.

-
Performance 
Evaluation Branch

DEPARTMENT OF THE

  NAV Y

NAVY  PERSONNEL  COMMAN D
MILLINGTON TN 38055-0000

5720 INTEGRITY DRIVE

5420
P801C/O309

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION  OF

NAVAL RECORDS

Via:

Subj:

Assistant for BCNR Matters (PERS-OOZCB)

AND
USN,

SE OF

Ref:

(a) PERS-311 Memo of 20 Nov 01

Encl:

(1) BCNR File 05323-01

osure (1) is returned, recommending approval of LCDR

equest for removal of her failures of selection

resulting from the FY-01 and  
Promotion Selection Boards and that she be granted a FY-01
special promotion selection board.

FY-02 Active-Duty Commander Line

Reference (a) recommended removal of the 1 November 1997 to

2.
14 September 1998 fitness report.
that the presence of this fitness report may have been
influential in the board's deliberations and may have effected
the 

It is reasonable to consider

s record amongst her peers.

competitivenes

ZW? Liaison,
Officer Career Progression
Division

Aciive and Reserve