DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

NAVY 

ANNEX

2 

WASHINGTON DC 20370-510

0

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

_ Secretary of the Navy

Subj 

:

LCD
REV

MC, US

Ref: (a)

Title 10 U.S.C. 1552

Encl:

(1)

(2)
(3)
(4)
(5)
(6)
(7)

Dee 99, 26 Feb 00,

DD Forms 149 dtd 15  
and 28 Apr 00, each w/attachments
PERS-311 memo dtd 5 Apr 00
PERS-4415 memo dtd 26 Apr 00  
PERS-311 memo dtd 27 Sep 00
PERS-06Ll memo dtd 7 Jun 01
Dept of Psych, NMC, Portsmouth, VA ltr dtd 30
Subject’s naval record

w/encls

S

BJG
Docket No: 7954-99
6 February 2002

 

Ott 01

1.
Pursuant to 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
fitness reports for 20 February to 13 October 1999 and 14 October 1999 to 7 January 2000,
copies of which are in enclosure (1) at Tabs A and B, and the mental health evaluation dated
21 July 1999, a copy of which is in enclosure (1) at Tab C. He also requested removal of
the Performance Appraisal Report for 25 September 1998 to 6 January 2000, the Quality
Assurance Investigation for 16 to 18 August 1999, and the plan for supervision dated
8 February 2000. These requests were not considered, as these documents are not part of his
official military personnel record.
request was not considered either, as he has been reassigned as he requested.

Finally, he requested a specific reassignment. This

2. The Board, consisting of Messrs. Chapman and Morgan and Ms.
Petitioner’s allegations of error and injustice on 1 February 2002, and pursuant to its
regulations, determined that the limited 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.

LeBlanc, reviewed

 

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.

In correspondence attached as enclosure

(2), the Navy Personnel Command (NPC)
 

Performance Evaluation Branch (PERS-3 1  
matters, has commented to the effect that Petitioner
20 February to 13 October 1999 should be denied.

l), the office having cognizance over fitness report
’s request to remove his fitness report for

C.

In correspondence attached as enclosure

(3), the NPC Medical Department Officer
 

Distribution Branch (PERS-4415) has commented to the effect that Petitioner has been
reassigned as he requested, and has recommended that the remainder of his request be
denied.

d.

In correspondence attached as enclosure

(4), PERS-311 has commented to the effect
 

that Petitioner ’s request to remove his fitness report for 14 October 1999 to 7 January 2000
should be denied.

In correspondence attached as enclosure

(5), the NPC Office of Legal Counsel
 

(PE&OSLl) has commented to the effect that Petitioner
fitness reports should be denied.

’s request to remove the contested

f.

In correspondence attached as enclosure

 
(6), the Department of Psychiatry, Naval

Medical Center (NMC), Portsmouth, Virginia, has commented to the effect that Petitioner
request to remove his mental health evaluation has merit and warrants favorable action.

’s

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
advisory opinion from the Department of Psychiatry, NMC, Portsmouth, Virginia at
(6), the Board finds the existence of an injustice warranting limited relief,
enclosure 
specifically, removal of the contested mental health evaluation. They also agree with the
advisory opinions at enclosures (2) and (4) from PERS-3 11 and the opinion at enclosure (5)
from PERS-06Ll in concluding that the contested fitness reports should stand. They are
unable to find these reports were based on the mental health evaluation, as opposed to other
sources of information. In view of the above, the Board directs the following limited
corrective action:

RECOMMENDATION:

That Petitioner ’s naval record, to include his medical record, be corrected by

rem:ving therefrom the mental health evaluation dated 21 July 1999.

b. That any material or entries inconsistent with or relating to the Board

recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s

’s record and

C. 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.

d. 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

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.

3

DEPARTMENT OF THE

N AVY 

PERSONNEL COMMAN

5720 INTEGRITY DRIVE

MILLINGTON TN 38055-0000

  NAV Y

D

1610
PERS-3 11
5 April 2000

MEMORANDUM FOR THE EXECUTIVE DIRECTOR BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERS/BCNR Coordinator (PERS-OOZCB)

Subj:

Ref (a) BUPERSINST 1610.10 EVAL Manual

Encl: (1) BCNR File

1, Enclosure  (1) is returned. The member requests the removal of his original fitness reports
the period 20 February 1999 to 13 October 1999 and 14 October 1999 to 7 January 2000, and a
copy of the signed statement which accompanied him to the mental health evaluation on 21 July
1999.

 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 fitness report for the period 20

February 1999 to 13 October 1999 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
digitized record. The fitness report for the period 14 October 1999 to 7 January 2000 was
received, however, it was rejected and we are in the process of returning to the reporting senior
for correction. The member provided a copy with his petition; however, due to the markings in
block-41 we will not file it. The member has two years from the ending date of the report to
submit a statement.

’s statement and endorsement are properly reflected in his

b. The member alleges the fitness reports were based on unsubstantiated allegations and

theory. Evaluation of a member
’s performance and making recommendations concerning
promotion and assignments is the responsibility of the reporting senior. In reviewing petitions
that question the exercise of the evaluation responsibilities, we must determine if the reporting
senior abused his/her discretionary authority. We must determine if there is any rational basis to
support the reporting senior ’s decision, and whether the reporting senior ’s action were the results
of improper motive. Therefore, for us to recommend relief, the petitioner has to demonstrate that
the reporting senior did not properly exercise his/her authority and the petitioner must show that
there is no rational support for the reporting senior ’s actions or that the reporting senior acted for
than just assert   the improper
an illegal or improper purpose.
done so. In addition Lieutenant
exercise of discretion. I do not beli

,

In this case, the reporting senior determined that the petitioner did not

While the information he
ubmitted extensive documentation about the report.
ts a different picture of his performance, it does not prove the  fitness reports are in
error. A fitness report is an opinion document that reflects the reporting senior’s evaluation of the
officer’s performance.
perform at the level expected.
1999 to 13 October 1999 mark of 1 
lO.lE due to two consecutive PRT
“Significant Problems” is required by OPNAVINST 61
failures. The reports were properly submitted, the petitioner elected to submit a statement, and
r
nfirmed her evaluation in the endorsement. The documents are on file in
the 
Lieu

In addition, the special fitness report for the period 20 February
.O in Military Bearing and the promotion recommendation of

 

ecord.

c. A 

fitness report does not have to be consistent with previous or subsequent reports. Each

fitness report represents the judgment of the reporting senior during a particular reporting period.

d. Enhancement of chances for promotion is not sufficient reason to remove a fitness report.

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

3. We recommend the member’s

Evaluation Branch

2

DEPARTMENT OF THE NAVY

NAVY PERSONNEL COMMAND

5720 

INTEDRITY DRIVE
MILLINGTON TN 38055-0000

1610
PERS-44 
15
26 Apr 2000

MEMORANDUM FOR THE EXECULTIVE DIRECTOR

NAVAL RECORD

,

-OR  CORRECTION OF

Via: PERS/BCNR Coordinator (PERS-OOZCB)

Subj 

:

Ref:

(a) PERS-OOZCB MEMORANDUM 5420 PERS-OOZCB dated 17 April 2000

Encl: (1) BCNR File

(2)
(3) CO

uest dated 7 October 1999
NavHosp Cherry Point endorsement 1000 Ser

09/0977 dated 15

Ott 99

1. Enclosure (1) is returned with comments as requested by reference (a). Enclosures (2) and (3) are
provided as substantiating documentation.

2.
Anesthesiology. He has been assigned to National Naval Medical Center (NNMC), Bethesda, Maryland
since reporting there on 13 January 2000. His immediate past command was Naval Hospital, Cherry
Point, North Carolina, where he served from 24 September 1998 until 13 January 2000.

Naval Officer in the Medical Corps who is Board Certified in

(2),

3. In enclosure  
North Carolina to NNMC, Bethesda, Maryland
volume of cases as well as increased professional stimulation..

uested that he be reassigned from Naval Hospital, Cherry Point,
 
.due to the need for exposure to a greater variety and

“. 

.”

 

. . 

the Commanding Officer, Naval Hospital, Cherry Point, North Carolina forwarded

most strongly recommending reassignment..

. ” and indicated that her
.” She went on to say that although 
.accept a six month gap in replacement.. 
. 
skilled in the technical aspects of anesthesia and management of anesthetized
nt difficulty in managing interpersonal relationships.
ores oversight from his Department Head and
for a small isolated duty
cer and in light of her su

n or leadership position.. 

 

“. 

. .LT

. . 

.”

 

.”
. 

Directorate. 

”

at member ’s request be denied.

Distribution Branch (PERS-4415)

artment Officer

Memorxtndum

From 

:

To

Via

: Chief. 

BUPERS

: Commanding 

Offic

Subj

: Duty Assignment

7 October 1999

ospital, Cherry Point, NC

Due to the need for exposure to a greater variety and volume of cases as 
professional stimulation,  
perform my official Navy duties as an anesthesiologist.

I respectfully request transfer to Bethesda Naval Hospital where 

wt4l as increased

I can

Enclosure 

(2)

DEPARTMENT OF THE  

NAVY

NAVAL HOSPITAL

CHERRY POINT, NORTH CAROLINA 28533-0023

PSC Box 8023

IN REPLY REFER TO:
100
0
Ser 
15 

09/0977
Ott 9 9

FIRST ENDORSEMENT

MC, 

U

From:
To 

:

Commanding Officer, Naval Hospital, Cherry E'oint
Chief Bureau of Naval Personnel  

(P4415)

Subj:

DUTY ASSIGNMENT

Ref:

(a)

PHOI!CON of 
Bold NAVHOSP CHPT

27 September,.

:UPERS/CAPT

Forwarded, most strongly recommending reassignment.

1.
Command will accept a six month gap in replacement.

This

clearly skilled in the technical
management of the  

anesthemtized
He lacks the ability to show compassion for the

2.
Lieutenan
aspects of an
patient.
emotional well being of his patients and has required frequent
pai
reminding to control post-operative  
. At this
small, isolated Command where Lieutenan
,orks with
fewer cases than in a structured residency, he had demonstrated
significant difficulty in managing interpersonal relationships.
Dismissed staff as intellectually inferior and rarely allows
support staff to help with his patients.
3.
duties to help with the clinical load.
isolated and uses the military hierarchy and structure to
maintain a  
to the detriment of the Command.
resistance to co-workers has negatively impacted the entire
operating room staff.
things be done his way and often demonstrates little tolerance
to deviation from his standard.
Department Head and Directorate.

Devoted to his work, Lieutenant

He is rigid and stubborn, insisting that

He ignores oversight from his

s i d ii ce

bCzttiE:,il  

liimself and  

His constant indifference and

certairl  

tii

as assumed extra

However, he is socially

 

others, at times

Lieutena

4.
percent body fat.
He is compliant with the Command directed
Remedial Program, but has shown no progress in reducing his
weight.
Medical special pay and promotion to Lieutenant
Commander are held pending compliance with PRT standards.

led two consecutive  

PRTs due to 27

Enclosure 

(3 

>

1

Subj:

DUTY ASSIGNMENT

Lieuten

5.
ot suited for a small isolated duty
station or
on.
He is temporarily assigned to
NNMC Bethesda pending funded permanent change of station orders.

6.
I can be re
jabold@chplO.me

? or  

email

--__-

___-  
File

2

Enclosure 

(3)

DEPARTMENT OF THE
PE RSONNEL COMMAN

N AVY 

5720 INTEGRITY DRIVE

.

MILLINGTON TN 38055-0000

  NAV Y

D

1610
PERS-3 11
27 September 2000

MEMORANDUM FOR THE EXECUTIVE DIRECTOR,
NAVAL RECORDS

BOARD FOR CORRECTION OF

Via: 

PERSBCNR Coordinator (PERS-OOZCB)

Subj: L

Ref (a) BUPERSINST 1610.10 EVAL Manual

Encl: (1) BCNR File

1. Enclosure (1) is returned.
period 14 October 1999 to 7 January 2000.

The member requests the removal of his fitness report for the

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, however, PERS-3 11 has
not received the member's statement and the reporting senior's endorsement.

b. The report in question is a Detachment of Individual/Regular report. The member alleges

the fitness report was unjust and not verifiable.

c. The fitness report appears to be procedurally correct. The reporting senior may use inputs
from a variety of sources in developing a fitness report. Per reference (a), comments on events
which may have effected the command or the member ’s performance, and which are established
to the reporting senior ’s satisfaction are appropriate if desired by the reporting senior.
The
contents of the report (marks, comments,
reporting senior’s appraisal authority for a specific period of time.

and promotion recommendation) represent the

d. Regarding the fitness report for the period 20 February 1999 to 13 October 1999. We have
n based on the new material presented.
ain recommend denial of the member ’s

reconsidered Lieutenant Comman
Our comments of 5 April 2000
request to remove the fitness report.

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

5800
Ser 
7 Jun  01

06Ll/  

067

Assistant Legal Counsel  
Special Assistant Congressional Liaison Office (PERS-OOZC)

(PERS-06Ll)

REQUEST FOR COMMENTS AND RECOMMENDATION IN
L

r M

CASE OF

I:
(c
(d
(e

(1

NAVPERSCOM(PERS-OOZ) memo 5420 PERS-OOZCB of 30 
NAVPERSCOM(PERS-311) memo 1610 PERS-311 of 27 Sep 00
NAVPERSCOM(PERS-311) memo 1610 PERS-311 of 5 Apr 00
BUPERSINST 1610.10
SECNAVINST 

7220.75C

Ott 00

BCNR File 07954-99

From:
To:

Subj:

Ref:

Encl:

Enclosure (1) is returned,

1.
provided in response to reference (a).

and the following information is

2.
The member's BCNR petition requests that his Fitness Report
f#zr the period of 20 February 1999 to 13 October 1999 be removed
from his permanent record.
The evidence contained in the file
d'oes not establish that the Fitness Report is unjust or otherwise
improper,
I concur with
the conclusions stated in references (b) and (c).

and I recommend no relief be granted.

Citing reference (d),

3.
the member argues that the submission
of the special fitness report was improper.
He argues that the
justification given by the commanding officer is not a sufficient
basis for a special report.
report states "This special  
decline in performance."
discretion to write and submit a special report.
with Annex D of reference (d),
special report when he or she believes declining performance
should be officially documented before the next periodic report.

Block 41 of the subject fitness
FITREP  is being submitted due to a
A commanding officer has significant

In accordance
a commanding officer may submit a

The member's argument that the special report is unjust seems

4.
to be based on his allegation that the commanding officer used
the special report as punishment.
This allegation is without
merit.
The member is correct in that Annex D of reference (d)
states that special reports should not be used as punishment.
This means that a special fitness report should not be used as a
substitute for a more appropriate action.
warrants a detachment for cause or discipline under the UCMJ,
then the commanding officer should pursue those channels, and the
member's performance will be documented through those processes.
If the commanding officer believes such severe measures are not

If a member's conduct

Subj: RE

LT;

ND RECOMMENDATION IN CASE OF
MC,

appropriate,
documented,

but that the performance still needs to be
a special fitness report is appropriate.

Based on all the evidence,

it is reasonable to conclude that

5.
the commanding officer believed the member's conduct did not
warrant punishment,
further illustrate why the member's argument is untenable, follow
it through to its logical conclusion.
special report is improper,
that he should have been punished under the UCMJ.
course, has not made that argument.

but did warrant official documentation. To

the member would also have to argue

In order to argue that the

The member, of

The commanding officer has a high degree of

The member alleges that not only was the special fitness

6.
report improper, but that the date of its submission is improper.
The discussion in the preceding paragraph regarding the writing
of a special fitness report applies equally to the date of its
submission.
discretion both as to whether to submit a special report at all,
and if so, when to submit it.
be appropriately related to the completion of a local command
investigation,
Duty (TAD).
officer,
punitive action was not necessary or desirable, but that the
member's performance should be documented at that point in time.
Simply because the commanding officer could have taken a more
severe action does not mean that the special fitness report was
improper.
It is the inherent role of the commanding officer to
make these sort of judgment calls.

and the start of a period of Temporary Additional
it appears that the commanding

after reviewing all the information, determined that

As discussed above,

In this case,

the timing seems to

However,

References (b) and  

underlying facts and opinions, if

The member next argues that then content of the fitness
(c) provide a

7 .
report is inappropriate.
thorough discussion of this issue.
It is noted that Annex N of
reference (d) states that a fitness report should not quote from
a medical report.
known to or held by the reporting senior, may be included.
fact that the same facts and opinions are also included in the
medical report does not prevent their use in a fitness report. A
reporting senior should not refer to the fact that a medical
report was done, and should avoid direct quotation when possible.
However, the reporting senior is not required to change his or
her opinion or description of performance simply because it
happens to coincide with that contained in the medical report.
While it is inevitable that some of the same words will be used,
it is a matter of opinion as to how much is too much.

The

Although not specifically mentioned in the member's BCNR

8.
petition, the member is also asking for the removal of the
Fitness Report for the period of 14 October 1999 to 7 January
2000, which is a Detachment of Individual/Regular Report.

For

Subj:

REQ
L T

AND
, MC,

ASE OF

the reasons discussed in the preceding paragraphs and in
references 

I recommend relief not be granted.

(b) and (c),

It appears that the member's requests for relief in regards
and for copies of signed,

9.
to his Incentive Special Pay (ISP),
written statements,
is governed by reference (e),
process.
Act and the Freedom of Information Act (FOIA).
have appeal procedures.

His request for documents is governed by the Privacy

Both of these

are not within proper BCNR requests.

The ISP

which provides for an appeal

In conclusion,

the evidence in this case does not warrant

i0.
the requested relief.
the role of a commanding officer and accordingly commanding
officer's are given substantial discretion.
In this case, the
commanding officer's opinion is based on substantiated facts and
is in no way arbitrary.

Documentation of a member's performance is