DEPARTMENT  OF THE  NAVY 

BOARD  F O R C O R R E C T I O N O F  NAVACRECORDS 

2   NAVY  ANNEX 

WASHINGTON  DC  20370-51 0 0  

HD: hd 
Docket No:  07776-02 
29 July 2003 

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, removal of  the enlisted performance evaluation report for 
28 December 2000 to  13 June 2001; advancement to pay  grade E-6 effective 16 June 2001; 
correction of your  record to reflect you  reenlisted in pay  grade E-6; and  corresponding 
adjustment of  your  pay, including your  selective reenlistment bonus. 

A three-member panel of the Board  for Correction of  Naval  Records, sitting in executive 
session, considered your application on  24 July 2003.  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 
opinions furnished by  the Navy  Personnel Command dated  10 February ahd  3 March 2003, 
the Deputy Assistant Secretary of  the Navy  (Personnel Programs) letter dated 21 June 2002, 
Subject:  Complaint of  Wrongs under  Article 138, UCMJ  (Uniform Code of  Military Justice), 
and  the memorandum for the record dated  23 July 2003, copies of  which  are attached.  The 
Board also considered your counsel's letter dated  19 June 2003 with  attachments. 

After careful and  conscientious consideration of the entire record, the Board found that the 
evidence submitted was insufficient to establish probable material error or injustice.  In this 
connection, the Board  substantially concurred with  the advisory opinions.  The Board was not 
persuaded  that you  should have been  tried by  a court-martial for the alleged misconduct cited 
in the contested performance evaluation report, nor could it find you  did not commit such 
misconduct.  Since the Board was  unable to find your recommendation for advancement was 
improperly withdrawn, it had  no basis to advance you  to pay  grade E-6 or show you 
reenlisted in pay  grade E-6.  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. 

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, 

Executive Direc 

Enclosures 

DEPARTMENT OF THE NAVY 

NAVY PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON TN 38055-0000 

1610 
PERS-3 1 1 
10 February 2003 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Via:  PERSIBCNR Coordinator (PERS-OOZCB) 

Ref:  (a)  BUPERSINST 1610.10 EVAL Manual 

Encl:  (1)  BCNR File 

1.  Enclosure (1) is returned.  The member requests the removal of his performance evaluation 
for the period 28 December 2000 to 13 June 2001. 

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 make a statement, however, PERS-3 11 has not 
received  the member  statement and  reporting  senior's  endorsement.  The member  provided  a 
copy of his  statement with is petition, but  it is not  suitable for  filing as the reporting senior's 
endorsement is missing. 

b.  The report in question is a SpeciaVRegular report.  The member  alleges the report was 

issued as punishment vice exhibiting performance problems. 

c.  The  member  filed  an  Article  138,  Complaint  of  Wrongs  to  support  his  contentions. 
Commander  Navy  Recruiting  Command  determined  the  requested  relief  requested  was  not 
appropriate in this case and denied the member's redress. 

d.  The  member  quotes  fiom reference  (a) why  a  special report  should not  be  submitted, 
however,  reference  (a)  linther  states  "Submit  a  Special  report  if  needed  for  an  enlisted 
advancement  cycle  to:  recommend  a  member  for  advancement  who  is  not  already  in  a 
recommended status; withdraw  an  advancement recommendation; or if a performance mark  is 
needed  to  establish  a  PMA  when  no  report  which  can  be  used  for  this  purpose  has  been 
submitted in current rate". 

e.  The  grades,  comments,  and  promotion  recommendation  reflect  the  reporting  senior's 
perception of each subordinate's performance and may be influenced by incidents that occurred 

during the period of the report.  The reporting senior stated his reason for submitting the report 
and also commented on the member's performance. 

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

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

Evaluation Branch 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

Sub j  :  COMMENTS AND RECOMMEND - us 

Via:  Assistant for BCNR Matters  (PERS-OOXCB) 

NAVAL RECORDS  (BCNR) 

Ref: 

(a) BUPERSINST 1430.163 

Encl:  (1) BCNR file #07776-02 

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 28 December 2000 to 
13 June 2001 and reinstatement of his advancement to MM1. 

reequsted removal of his 

3.  Based on the comments contained in pPERS-311 memorandum 
of 10 February 2003, the evaluation in question is valid and 
a favorable endorsement cannot be granted regarding this 
petition. 

By direction 

DEPARTMENT OF THE N A V Y  
OFFICE OF THC A l b l b T A U T  ElECRRTAUY 
( M A N P O W E R  A N n  RCSPRVC; AFFAIRS) 

1000 NAVY PENTAdON 

WABHINQTON.  D.C.  203fiO-1000 

PAGE  02 

7 7'76-/ 3 

From:  Deputy Assistant  Secretary of the Navy  (Personnel 

To: 

USN 

Subj:  COMPLAINT OF WRONGS UNDER  ARTICLE  138,  UCMJ 

R e f :  

(a) JAGMAN Chapter XI1 
(b) COMNAVCRUITCOM l t r   5800 Ser 005/01513 of 

18 Dec 01 

1 .   This letter responds to your complaint of wrongs under 
Article  138, Uniform Code of Military Justice,  against  Commanding 
Officer,  Naval. Recruting  District Houston. 

2.  The general court-martial convening authority,  Commander, 
Navy Recruiting Command,  c o n c l i ~ r l ~ d  yorm  complaints are without 
merit under reference  (a).  I have determined that the action of 
the general court-martial  convening authority,  as communicated to 
you by  reference  (b), is correct,  and  I  approve it. 

3 .   This decision constitutco f i n a l   a c t i ' o n   on your complaint. 

Copy  to: 
COMNAVCRUITCOM MILLINGTON  TN 

23 July 2003 

MEMO FOR  RECORD 
Re: 0- 
LEY n-iy- 

mmendation for advancement 
an effective date of 

16 Jun 01 and a time in rate date of 1  Jan  01. 

Head, Perfon --,.,, 

,,,,,..