DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD
ANNEX

NAVY 

2 

WASHINGTON DC 20370-510

0

USN

S

HD:hd
Docket No: 01562-03
8 September 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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 5 September 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
23 June 2003, a copy of which is attached. The Board also considered your letter dated
21 August 2003 with enclosures.

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
2.c, that the applicant “has to show that
advisory opinion, except the statement, in paragraph 
either there is no rational support for the reporting senior’s action or that the reporting senior
acted for an illegal or improper purpose”; the statement, in paragraph 
2.d, that the request for
your detachment for cause (DFC) was “disapproved” by the Commander, Cruiser Destroyer
Group Two; and the statement, in paragraph 
recommendation in the contested fitness report is considered adverse. The Board recognized
that under its governing regulation, Secretary of the Navy Instruction 5420.193, enclosure
(l), paragraph 
3.e(2), the applicant’s burden of proof is merely to persuade the Board that the
evidence of record demonstrates “the existence of probable material error or injustice. 
” The
Board noted that the Commander, Cruiser Destroyer Group Two recommended disapproving
your DFC, while the Chief of Naval Personnel was the sole authority for its disapproval.

2.e, to the effect that your promotion

The Board further noted that the promotion recommendation in the contested report,
“Progressing, 
1610.10.

” is not adverse per criteria specified in Bureau of Naval Personnel Instruction

The Board found that part of the reason for disapproving your DFC was the determination
that you had not been given reasonable time to improve and correct perceived deficiencies.
However, the Board found this did not preclude the reporting senior from documenting such
deficiencies. The Board further found that another part of the reason for disapproving your
DFC was insufficient documentation that the perceived deficiencies had been communicated to
you. On the other hand, the Board was unable to find you were not counseled at all, noting
you concede you received a letter of instruction. In this regard, the Board generally does not
grant relief on the basis of an alleged absence of counseling, as counseling takes many forms,
so the recipient may not recognize it as such when it is provided. The Board was unable to
find the reporting senior omitted reference to any accomplishments that should have been
mentioned expressly. Finally, the Board was unable to find that the aviation certification
inspection the reporting senior said you failed to prepare your department to undergo
occurred, as you assert, in November 1999, before the reporting period.

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.

Enclosure

DEPARTMENT OF THE NAVY

NAVY  PE RSONNEL  COMMAN D
MILLING-I-ON TN 
38055-0000

5720 INTEGRITY DRIVE

1610
PERS-3 11
23 June 2003

MEMORANDUM FOR THE EXECUT

IVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Via: 

PERSBCNR  Coordinator (PERS-OOZCB)

Subj: LC

Ref (a) BUPERSINST 1610.10

EVAL M anual

 

Encl: (1) BCNR File

1. Enclosure
period 1 February 2000 to 3 1 January 2001.

(I) is returned.
 

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 reporting senior

’s endorsement.

b. The report in question is a

Periodic!Regular report.

 

The member alleges the reporting

senior ’s comments and grades are disingenuous, libelous, unsubstantiated, manifestly unjust, and
are an abuse of discretion in the proper use of fitness reports.

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

’s evaluation

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 exercise of discretion; he must provide
evidence to support the claim. I do not believe Lieutenant Commande

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

s done so.

d. Lieutenant Comm

her asserts that the fitness report should be removed
(DFC) was disapproved by Commander, Cruiser
because the request for Detachment of Cause
Destroyer Group TWO on 12 February 2001 and by the Chief of Naval Personnel on 22 March
2001.
indicating the deficiencies were communicated to the member or that he was afforded a
reasonable period of time to improve and to correct the deficiencies.

The DFC was initially disapproved because there was insufficient documentation

 

, 

’

e. The reporting senior states the report did not meet the criteria as an adverse report,

however, due to the comments in block-41 and the member
report is considered adverse. Even though the report was not referred to the member as adverse
and for a statement, we will not remove the report. The member signed the report on 8 January
2001 and indicated he did desire to submit a statement.

’s promotion recommendation the

f. The reporting senior may comment or assign grades based on performance of duty or events
that occurred during the period of the report. The report represents the judgment of the reporting
senior. Lieutenant Villarreal bases his request on his personal perception of his performance
during the period.
processes set up for that purpose, Article 138, Navy Hotline, etc.

Complaints of wrongful treatment should be handled under one of the

g. The member has provided considerable supporting documentation that reflects favorably

on the member performance, it does not invalidate the 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.

Evaluation Branch

2