DEPARTMENTOFTHE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

HD:hd
Docket No: 08265-01
16 December 2002

SN

Dear Commande

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 7 November 2002, and they deferred decision to get
the remainder of the record of proceedings concerning your complaint under Article 138,
Uniform Code of Military Justice (you provided only your complaint and the Deputy
Assistant Secretary of the Navy (Personnel Programs) denial letter dated 14 September 2001).
They completed their deliberations on 16 December 2002. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary 
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 11 March,
28 August and 27 September 2002, copies of which are attached. The Board also considered
your letters dated 28 October 2002 with enclosures and 18 November 2002, the remainder of
the Article 138 proceedings, and the reporting senior’s letter dated 13 October (sic (should be
November)) 2002, a copy of which is attached.

mat&al considered by the Board

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 dated 28 August 2002.

The Board did not agree with the advisory opinion dated 11 March 2002, which
recommended removing the contested fitness report. In this regard, the attached letter from
the reporting senior convinced them that this opinion was incorrect in stating, in paragraph
2.c, that he “refused to comment” when you asked him to explain why he had marked you
“Promotable, 

” the third best promotion recommendation. They also noted that in the

immediately following report from the same reporting senior, for 1 September 
31 August 2001, you were marked  “Must Promote,” the second best.

2ooO to

Since the 
failures of selection by the Fiscal Year 01 through 03 Line Captain Selection Boards.

Board found no defect in your performance record, they had no basis to strike your

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

Enclosures

DEPARTMENT OF THE NAVY
CHIEF OF  NAVAL  PERSONNEL
20370-  3000
WASHINGTON, D.C.  

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS (BCNR)

Subj:

Ref:

Encl:

SN,

(a) BUPERSINST 1610.10

(1) BNCR PETITION PACKAGE DOCKET NO. 08265-01

1.

Board for Correction of Naval  
PERS-OOJ opinion on the case of CD
has petitioned removal of  
99SEPOl to  

OOAUG31.

performa

Reco

d

who

2.

After review of enclosure  
following:

(l), I have found the

a.

b.

As noted in Ref

Performance counseling is required.
(a) "Performance counseling must be provided at the
mid-point of the periodic report cycle, and when the
report is signed... The objectives are to provide
feedback to the member and to motivate and assist
improvement."
Ref (a) notes that "Counseling may
actually be provided in an earlier or later month if
that is more appropriate,
but may not be omitted or
unduly delayed."

OOAUG31  is not signed.

B.lock 32 of the performance report for the period
99SEPOl to 
indicates counseling was performed.
significant 
with the reporting senior about his plan to move him
to MP or EP in block 42 based on the reporting
senior's grading criteria. "If counseling was not
performed for any other reason, enter NOT PERF, and
provide a brief explanation in block 31."

This is

becaus

_ 

.._

However, block 30

dressed this issue

The failure of proper counseling as required in Ref
(a) is also apparent where the member identified what
he thought was an unfair performance report.
following actions were taken:

The

(1)

The member submitted a statement

.

,

,

i

‘

,ci v

 / 

“

(2)

(3)
(4)

(5)

The member requested the senior member
reconsider the performance report.
The member filed an Article 138.
The member exhausted all means available to
receive relief prior to BCNR petition.
The member petitioned for a BCNR.

The most glaring detail that the member was not
properly counseled is when the member attempted to
reconcilliate  his performance report with his
reporting senior.
for insight as to the objective criteria used to
determine block 42 of the performance report was
declined.
often given as a counseling tool and constructive
criticism to help improve the subordinate's
performance.

Though not required, this assessment is

Specifically,

the member's request

C .

There are concrete examples of his

Overall'his cumulative trait average rose

The member had the expectation that his promotion
recommendation in block 42 would be based solely on
his performance.
outstanding performance throughout the reporting
period.
from a 4.33 (reporting period  
OOAUG31).  In
a 4.50 (reporting period  
addition statements in block 41 such as "Ready for
CAPT now" and "A respected technician and visionary
who has set the course for   22 Commanding officers..."
articulates his outstanding expertise as a Naval
Security Group Commanding Officer.
reporting senior made the statement in the
dat_e.d  
performance report for the period  
99AUG31:

"If I had another MP it would go to CDR

99SEPOl to 

99FEB02 to 

99FEB02  to

Also, the

99AUG31)  to

Finally, he was the COMNAVSECGRU nominee
ional Security Agency/Central Security

Service Rowlett Trophy.

the facts indicates that the  CDR
performance demonstrated significant an
accomplishments since his firs
t

.

I recognize the reporting senio

performance report.
has discretion based on his personal observation o
an officer
t
4
was proactive and sought further guida
information as to why his recommendation remained at
the Promotable level, but the reporting senio

it is reasonable to conclud
d an expectation to receive 
on his performance.

n

d

f

r

e

a

r

Since the reporting senior di

refused to comment.
d
not objectively identify factors he used to determine
his promotion recommendation, this suggests that his
decision may not have been solely based on the
performance of the member that was documented
throughout his fitness report and provided as input
by the member.
injustice in the performance report.
There is no
evidence of clear discrimination or racial bias, but
there are concerns due to the fact that the grades
and promotion recommendation do not match the
writeup. Therefore,
of the performance report for the period dated
99SEPOl to  

This raises the concern of potential

I recommend the complete   removal

OOAUG31.

.

Special Assistant for Minority
Affairs to the Chief of Naval
Personnel (Pers-OOJ)

DEPARTMENT 

OF THE NAVY

N AVY  PERSONNEL COMMAND
MILLINGTON  TN 

5720 INTEGRITY DRIVE

38OSS-0000

1610
PERS-3 11
28 August 2002

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 fitness report for the
period 1 September 1999 to 31 August 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.

contents.of the report and his right to submit a
It is signed by the member acknowledging the 
statement. The member indicated he did desire to submit a statement. PERS-311 has not
received the member
Annex S, paragraph S-8, the member has two years 
statement.

from the ending date of the report to submit a

’s statement and the reporting senior

’s endorsement. Per reference (a),

b. The report in question is a Periodic/Regular report. The member alleges his promotion

recommendation he received was capricious, unjust and bias.

c. The member filed an Article 138, Complaint of Wrongs to support his contentions. The

general court-martial convening authority, Commander Navy Personnel Command, concluded
JAGMAN Chapter III, and noted the member
the member ’s complaint are without merit under 
could petition the Board for Correction of Naval Records to remove or correct any record error.

d. In reviewing petitions that question the exercise of the reporting senior

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
evidence to support the claim. I do not believe Comman
provided in the member
purposes or that the report lacked rational support.

n; he must provide
done so. Nothing
’s petition shows that the reportingsenior acted for illegal or improper

’s action or that the reporting senior acted for an illegal or improper purpose.

’s evaluation

e. The reporting senior is charged with commenting on the performance or characteristics of

each member under his/her command. The contents and grades assigned on a fitness report are at
the discretion of the reporting senior. The evaluation of a subordinate
recommendations concerning promotion and assignments are the responsibilities of the reporting
senior. While the member may disagree with the reporting senior
senior must make a judgment and rank the officers. In this case the reporting senior assigned the
of  “Promotable ”. Such a ranking does not indicate a
member a promotion
failing on Command
art, but rather the reporting senior assessment of his
promotion potential compared to other officers being evaluated.

’s performance and making

’s evaluation, the reporting

f. The member has provided several commendatory letters of support in his petition. While

their comments add insight and reflect favorably on the member
that the fitness report was in error.

’s performance, they do not show

g. Counseling of a member takes many forms. Whether the member was given written or

oral counseling, or issued a Letter of Instruction 

(LOI) does not invalidate a fitness report.

h. 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

DEPARTMENT OF THE

  NAV Y

NAVY PERSONNEL COMMAND
MlLLlNdTON  TN 38055-0000

5720 INTEGRITY DRIVE

5420
PERS-80
27 SEP 

2002

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via:

Assistant for BCNR Matters (PERS-OOZCB)

Subj:

Ref:

(a) PERS-311 Response Memo, dtd  
(b) 

14Ol.lB,  Special Promotion Selection Board

28AUG02

SECNAVINST  
guidance

Encl:

(1) BCNR File 08265-01

We are returning enclosure   (1) with

1.
observations and the recommendation tha
to expunge a fitness report and to be afforded a
Promotion Selection Board be disapproved.

requests

Special

Based on review of the references, enclosure, and the

2.
member's official record, we find the following:

(a) The references listed adequately address that it is the
responsibility of the individual to demonstrate evidence that a

procedure or policy has caused the situation.
1s to prove either,

but only speculates that his

CDR

position, as stated in his letter, must be accurate.
since board deliberations are deemed secret due to the
sensitivities involved,
board  members deliberate and compare peers to choose the 
and fully qualified
The FY-03 Active Line   O-6 Promotion Selection Board did not come
to the conclusion that he was among those to become a Captain.
The competition for the rank of Captain is especially keen!

” individuals to assume the next higher rank.

no speculation is appropriate.

In fact,

The

“best

(b
proced
redress the fitness report in question has not been received by
PERS-3, reference (a).
Also, after review of his career path

sertion that he has "exhausted all
His letter to
e 

'1 is not accurate.

.._, 

.

>.

,

,, 

:I 
,
.’

Subj 

:

RE
CD

OF

and official record,
requests, would not necessarily improve his chances of
selection.

I suggest that expunging the  

fitrep,  as he

(c) Nothing presented,

or discovered during my review, meets

the criteria, as delineated, in reference (b), justifying a
Special Promotion Selection Board.

(d) Finally, his reference or concern about a possible bias
cdrrelation to the selection board racial statistics, in
and 
paragraph  9 of enclosure (3) in his letter to the Secretary of
the Navy, is taken out of context.
minority selectees relatively approximate overall selection rate
as compared to the demographics for population being considered.

The statistics indicate that

this request has not provided sufficient facts to

3. In summary,
justify a change or removal of a  
response from PERS-311,
confidence and position is.based on the
integrity and overall process approval.
assertions must be based in fact, not
the official record change would occur,
consideration via a Special Selection Promotion board.

and disagree with PERS-OOJ. My
selection bo

speculation.

fitrep.

I concur with the

d member
4;

If and until

he does not qualify for

Active and Reserve
ogression Division
n Branch

Sri6  November 15, 2002

 

OZ24  pm

winsor 

whiton 

3[11-863437og

To:

13  October 2002  
( 

sic 

) 

Novembc

Sbbj  :  Requested Comments
Ref: 

a)a 

-r o for the Record dated 11 

Ott 00, subj. Request for

11 Mar 02, subj. BNCR Petition ICO

1. Sir: You asked me to comment on the 

others stand alone and perform

 commands do not. I explained that given the variables, e.g.,

“objective criteria ” used in
this is correct. My recollection of the conversation
ok him to mean by objective data a 
“cookbook

refenences.
a. Reference (a) states that I declined to share the 
ranking
iSthat
he did not challenge. I told him why such an
approac
approach struck me as inherently unfair. Commands differ in mission, size, and
responsibility. For example some are tenants. 
functions tenant
quality of life, a lower retention rate at one command might actually indicate better
performance than a higher rate at another and cited some examples. I
ooncluded
accost all the inputs received,
that in my view commanders had to take into
consider their own observations and knowledge of the different commands, and
apply their 
the course of the conversation, we did touch on several areas considered in 
COs, such 
’ 
I explained that his group
request that I change his promotion recommendation, 
was very competitive because we put our best 
governing directive limits the number of 
assign. I had used the allowed number  of 
saw no way to take one back in any case.

rankL~g
tid customer feedback. As to the

“EPs” a reporting senior can
Mps, 

as retention, mission accomplishment;

to determine ranking. In

thou&t them merited, and

best professional judgment,

officers in command 

“MPs ” and 
EPs and 

 not a cookbook, 

and the

 

 

he did. However, he was not the only

to expect one  given the forced distribution required. Nor do

ad every right to  “expect ” a higher
b. Reference (b) asserts
promotion recommendation. I would agree that he had every right to want one and
told him I thought it spoke well, of him that
 
officer with his grade average that did not to get an
right  
suggestion that his promotion recommendation may not h
performance. This appears to be founded on the perception
was offered no insight into the ranking process. He was, al
he sought. Finally, I believe the grades and write up do match. His grades on the
report were above my cumulative average 
and above the average for those in his peer group, 

a3 a reporting senior
to1

1 disagree that he had a

aa;ree with the

which I 

&tP and 

I