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.
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