DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100




                                                                  HD:hd

                                                    Docket No. 09315-04

                                                            10 March 2005









            Dear Commander

            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 10 March 2005. 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 13 January 2005, a copy of which is attached, and
            your letter of
            25 February 2005.

            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.

            The Board concluded that any procedural irregularities in the
            proceedings of your complaint under Article 138, Uniform Code
            of Military Justice, would not support removing the contested
            fitness report. The Board was unable to find you were not
            counseled. 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 noted that a










         reporting senior’s observation need not be direct. Finally, the
         Board observed that paragraph 8 of your rebuttal statement dated
         22 February 2003 addressed and effectively revealed the sentence,
         to the effect you violated standing orders, that has been removed
         from the contested fitness report. However, the Board did not
         consider this a material error warranting corrective action in an
         otherwise adverse 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,








         Enclosure


                                      DEPARTMENT OF THE NAVY
                                        NAVY PERSONNEL COMMAND
                                      5720 INTEGRITY DRIVE
                                MILLINGTON TN 38055-0000

                                            1610

                                             PERS-311

                                             13 January 2005



    MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD  FOR  CORRECTION  OF  NAVAL
                                RECORDS

    Via:    PERS/BCNR Coordinator (PERS-3LC2)

    Ref:    (a) BUPERSINST 1610.10 EVAL Manual

    End:    (1) BCNR File

    1.      Enclosure (1) is returned. The member requests  the  removal  of
    his fitness report for the period 1 September 2002 to 26 February 2003.

    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 signed by  the  member  acknowledging  the
    contents of the report and his right to submit a statement. The member’s
    statement and reporting senior’s endorsement is filed  in  the  member’s
    record.

      b.    The  report  in  question  is   a   Detachment   of   Reporting
    Senior/Regular report. The member alleges the report is  inaccurate  and
    did not reflect his performance, and his Article 138 complaint  was  not
    processed in an expeditiously manner.

      c.   The member used an Article 138, Complaint of Wrongs  to  support
    his contentions. The general court-martial  convening  authority  (GMCA)
    determined the member’s allegations to have merit in part and authorized
    the member partial relief. The member’s fitness report has been  changed
    to reflect the relief authorized by the GCMA.

      d.    The  reporting  senior  is  charged  with  commenting  on   the
    performance or characteristics of each member under his/her command  and
    determines what material will be  included  in  a  fitness  report.  The
    contents and performance trait marks assigned are at the  discretion  of
    the reporting senior. The report represents the appraisal  authority  of
    the reporting senior. The reporting senior states in the comment section
    his reason for preparing the report as he did.

      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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Evaluation Branch