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NAVY | BCNR | CY2005 | 00212-05
Original file (00212-05.rtf) Auto-classification: Approved

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


BJG
 Docket No: 212-05
                                                                                           18 April 2006

 From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
        
                  Subj:   CDR     MC,
 REVIEW OF NAVAL RECORD
Ref:    (a) Title 10 U.S.C. 1 52
End:     (1) DD Form 149 dtd 14 Dec 04 w/encl
(2)      PERS-311 memo dtd 2 Mar 05
(3)      Counsel’s ltr dtd 28 Mar 05
(4)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected by removing the fitness report for 1 November 2003 to 13 August 2004 (copy at Tab A to enclosure (1)) . He also requested a special selection board for commander. The Board did not consider this request, as he has been promoted to commander.
2.       The Board, consisting of Mses. McCormick and Nofziger and Mr. Mann, reviewed Petitioner’s allegations of error and injustice on 17 April 2006, and pursuant to its regulations, determined that the limited corrective action indicated below should be taken of the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.

                  b.       Petitioner contends the contested report, which includes adverse marks and comments, is both erroneous and unjust. He objects to the statement, in block 41 (“Comments on Performance”), that he was “Relieved from his position as Flight Surgeon and subsequently volunteered to surrender his Flight Surgeon privileges.” He contends he was not “relieved,” but left the position voluntarily. He also objects to the block 41 statement “Not being a Medical Officer, I am unable to comment on his clinical abilities.” He asserts that he served at the Branch Medical Clinic for three months of the reporting period, and the reporting senior (RS) had access to information about his performance there, but chose to ignore it. He alleges he was not provided adequate counseling. He feels the narrative does not explain the decline the contested report represents from the immediately preceding report. Finally, he objects that the report does not mention his primary achievement during the period, his execution of his duties on a mishap board.
                  c.       In enclosure (2), the Navy Personnel Command (NPC) Performance Evaluation Branch comments to the effect that the report at issue should not be removed, but should be modified to delete “Relieved from his position as Flight Surgeon and subsequently” so the sentence in which the language to be removed appears will read as follows: “Volunteered to surrender his Flight Surgeon privileges.”
                  d.       In enclosure (3), counsel states the partial relief proposed in enclosure (2) “.. .grossly inadequate and will not make the report substantively just or accurate...”
CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosure (2), the Board finds the existence of an error and injustice warranting the partial relief NPC recommended.

The Board is unable to find the RS had enough information to comment on Petitioner’s clinical abilities. The Board likewise is unable to find Petitioner was not counseled, noting counseling takes many forms, so the recipient may not recognize it as such when it is provided. The Board finds the adverse narrative adequately explains the decline from the prior report. Finally, the Board is unable to find the RS omitted comment on achievements of such significance as to warrant express mention.
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 In view of the above, the Board directs the following limited corrective action.

RECOMMENDATION:

 a.       That Petitioner’s record be corrected by modifying as follows the fitness report for 1 November 2003 to 13 August 2004, dated 18 August 2004 and signed by Captain United States Navy:
Block 41: Amend second sentence to read as follows:
 “Volunteered to surrender his Flight Surgeon privileges.”
b.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
c.       That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.
d.       That the remainder of Petitioner’s request be denied.
4.       Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.


ROBERT D. ZSALMAN                          JONATHAN S. RUSKIN
Recorder                                             Acting Recorder
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5.                Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.




                                                                                 W. DEAN PFEIFFER
                                                                                 Executive Director












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


                                                                                          1610
                                                                                          PERS-311
                                                                                          2 March 2005
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

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

Subj:    LCDR

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 November 2003 to 13 August 2004.

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

b.       The report in question is a Detachment of Individual/Regular report. The member alleges the report is grossly erroneous and unjust.

c.       The report is procedurally correct. In reviewing petitions that question the exercise of the reporting senior 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’s action or that the reporting senior acted for an illegal or improper purpose. 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 done so. The fitness report itself represents the opinions of the reporting senior.

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 reporting senior may comment or assign performance trait marks based on performance of duty or events that occurred during the reporting period. Even if there had been a personal conflict between the member’s and his immediate supervisor, it is appropriate for the reporting senior to obtain and consider information from his immediate supervisor in developing a fitness report. However the report is developed, it represents the judgment and appraisal authority of the reporting senior.

e.       If the member believed he was treated wrongfully then complaints of wrongful treatment should be handled under one of the provisions set up for that purpose, Article 138, Navy Hotline, etc.

f.       A fitness report does not have to be consistent with previous or subsequent reports. Each fitness report represents the judgment of the reporting senior during a particular reporting period.

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

3.       In view of the documentation provided with the member’s petition, we recommend partial relief. We recommend the following be deleted from the second sentence in block-4 1; “Relieved from his position as Flight Surgeon and subsequently” so it will read “Volunteered to surrender his Flight Surgeon privileges”.






                                                                        Performance
                                                                        Evaluation Branch
























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