DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY
ANNEX
WASHINGTON DC 20370-5100
BJG
Docket No: 5799-01
22 March 2002
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Dear
This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.
You requested, in effect, unspecified “reparation” of your fitness report for 7 August 1999 to
28 July 2000. At a minimum, you requested that your statement to the record and your
complaint under Article 138, Uniform Code of Military Justice, be filed in your
the contested report. Your statement of 4 August 2000 is on file in your record.
record with
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 21 March
2002. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by the Navy Personnel Command dated
17 December 2001, a copy of which is attached.
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. In this connection, the Board substantially concurred with the comments contained
in the advisory opinion, except they noted that you alleged the report at issue had been
lowered from “early promote” (highest) to “promotable” (third highest); you did not allege,
as the advisory opinion indicates you did, that the proper mark would have been “must
promote” (second highest). They found your record was substantially complete without your
complaint under Article 138. In view of the above, your application has been denied. The
names and votes of the members of the panel will be furnished upon request.
Although the Board voted not to place your Article 138 complaint in your record, you may
submit it to future selection boards.
It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by the Board. In this regard, it is
important to keep in mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record, the burden is on the
applicant to demonstrate the existence of probable material error or injustice.
Sincerely,
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W. DEAN PFEIFFER
Executive Director
Enclosure
DEPARTMENT OF THE
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
NAV Y
1610
PERS-3 11
17 December 2001
MEMORANDUM FOR THE EXECUT
IVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Via:
PERWBCNR Coordinator (PERS-OOZCB)
Subj : ETC
Ref:
(a) COMSUBGRU TEN ltr 58 19
(b) Office of the Assistant Secretary of the Navy (Manpower and Reserve Affairs) ltr of
Ser02L/5 18 of 29 November 2000
26June2001
(c) BUPERSINST 16 10.10 EVAL Manual
Encl: (1) BCNR File
1. Enclosure (1) is returned. The member requests changes be made to his fitness report for the
period 7 August 1999 to 28 July 2000.
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. The member
and reporting senior
’s endorsement are properly reflected in his digitized record.
b. The report in question is a Detachment of Reporting Senior/Regular report. The member
alleges the report was not a fair evaluation of his performance and he received a promotion
recommendation of
“Promotable ” vice “Must Promote ”.
’s statement
’s evaluation
c. In reviewing petitions that question the exercise of the reporting senior
’s action or that the reporting senior acted for an illegal or improper purpose.
responsibilities, we must determine if the reporting senior abused his/her discretionary authority.
For us to recommend relief, the petitioner has to show that either there is no rational support for
the reporting senior
The petitioner must do more than just assert the improper exercise of discretion; he must provide
evidence to support the claim. I do not believe
s done so. The fitness
report itself represents the opinion of the reporting senior.
Nothing provided in the member
petition indicates the reporting senior acted for illegal or improper purposes or the report lacked
rational support.
’s
d. The fitness report appears to be procedurally correct. The reporting senior is charged with
commenting on the performance or characteristics of each individual under his/her 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. The evaluation of a subordinate’s
performance and making recommendation concerning promotion recommendations and
assignments are the responsibilities of the reporting senior.
e. The member filed an Article 138, Complaint of Wrongs to support his contentions. Per
GCM’s action determined no relief was appropriate and was approved by
Reference (a), the
reference (b).
f. 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
2
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