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NAVY | BCNR | CY2002 | 08091-02
Original file (08091-02.pdf) Auto-classification: Denied
DEPARTMENT OF THE  NAVY 

BOARD FOR  CORRECTION  OF  NAVAL  RECORDS 

2  N A V Y A N N E X  

WASHINGTON  D C   2 0 3 7 0 - 5 1 0 0  

HD: hd 
Docket No:  08091-02 
22 April 2003 

Dear Comman 

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. 

A three-member panel of  the Board for Correction of  Naval Records, sitting in executive 
session, considered your application on  17 April 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 
opinion furnished by  the Navy  Personnel Command dated 22 February 2003, a copy of  which 
is attached.  The Board also considered your letter dated  1 April 2003. 

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. 

The Board noted that the contested fitness report refers to a letter of  instruction, but  does not 
mention a nonpunitive letter of  admonition, reprimand, caution or censure.  Therefore, the 
Board found that the report at issue did not violate the prohibition against mentioning such a 
nonpunitive letter in a fitness report.  The Board  was unable to find the investigation cited in 
the report was a preliminary inquiry, as you  allege.  Even if  you  are correct that the 
investigation was a preliminary inquiry, subsection 0204.b of Judge Advocate General 
Instruction 5800.7C  does not prohibit basing  the content of  a fitness report on  the results of a 
preliminary inquiry, but  merely  states such an  inquiry is "not intended to develop facts 
extensively or to serve as a medium  for analyzing facts."  Finally, the Board  found you  were 
afforded the due process to which you  were entitled, in  that you  were afforded an opportunity 
to submit a statement concerning the contested fitness report. 

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, 

W.  DEAN PFEIFFER 
Executive Director 

Enclosure 

DEPARTMENT OF THE NAVY 

NAVY PERSONNEL COMMAND 

5720 INTEGRITY DRIVE 

MILLINGTON TN 38055-0000 

1610 
PERS-311  , 
22 February 2003 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Via:  PERSBCNR Coordinator (PERS-OOZCB) 

Subj:  L 

Ref  (a)  BUPERSINST 1 6 1 0.10 EVAL Manual 

Encl:  (1)  BCNR File 

1.  Enclosure (1)  is returned.  The member requests the  removal  of  his  fitness report  for the 
period 1 February 2002 to 1 July 2002 and all associated statements and addendum's. 

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  reporting senior's  endorsement.  Per  reference  (a), 
Annex  S, paragraph  S-8, the member has two  years  fiom the ending of the report to submit a 
statement. 

b.  The fitness report in question is a Detachment of IndividuaVRegular report.  The member 
alleges the mention of a non-punitive administrative letter he received in a fitness report violates 
navy  regulations.  The  member  did  not  provide  a  copy  of  the  non-punitive  letterlletter of 
instruction. 

c.  It  is the reporting senior's responsibility to  determine what ,will be  included in a fitness 
report.  The fitness report represents the judgment and appraisal authority of the reporting senior. 
Reference (a),  Annex  N,  paragraph  N-13  states; "Comments  may  be  included  on  misconduct 
whenever the facts are clearly established to the reporting senior's satisfaction".  "The comments 
may refer to non-punitive administrative corrective measures, other than a nonpunitive letter of 
censure".  The reporting senior clearly explains in the comment section his reason for preparing 
the report as he did. 

d.  Counseling of a member takes many forms.  Whether or not the member was given oral or 
written counseling or issued a Letter of Tnstruction (LOO does not invalidate a fitness report.  The 
reporting senior states the member was issued a Letter of Instruction. 

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

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

Evaluation Branch 



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