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NAVY | BCNR | CY2005 | 04311-05
Original file (04311-05.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
 BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD : hd
Docket No. 04311-05
24 April 2006
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy

Subj:    MNC (SW )
 REVIEW OF NAVAL RECORD

Ref:     (a) 10 U.S.C. 1552
End:     (1) DD Form 149 dtd 19 May 05 w/attachments
(2)      PERS-311 memo dtd 3 Aug 05
(3)      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 the applicable naval record be corrected by removing the fitness report for 16 September to 12 November 2004 (copy at Tab A).

2. The Board, consisting of Ms. Ballinger and Messrs. Cooper and Schultz, reviewed Petitioner’s allegations of error and injustice on 20 April 2006, and pursuant to its regulations, determined that the corrective action indicated below should be taken on 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. Enclosure (1) was filed in a timely manner.
c. The contested “detachment of individual” report, submitted on 2 December 2004, is adverse, including a promotion recommendation of “Significant Problems” (lowest possible). It
 ends by stating Petitioner is not recommended for advancement at this time.

d. Petitioner filed a complaint of wrongs against his reporting senior/commanding officer (CO) under Article 138, Uniform Code of Military Justice seeking removal of the contested report. By memorandum of 18 April 2005 (copy in enclosure (1)), the general court-martial authority (GCMA) concluded “the issue is moot” in light of Petitioner’s command’s message to the Navy Personnel Command (NPC), Code PERS-811 (now PERS—4811) dated 11 Au~+s~t~20 05 (copy in enclosure (1)), stating that Petitioner is recornmehäed for advancement, that the contested report “has been withdrawn,” and that the uncontested report for 3 December 2003 to 15 September 2004 (copy at Tab B) has been extended to cover the period of the contested report.
e. Enclosure (1) also contains a copy, provided by Petitioner, of the reporting senior’s fitness report administrative change letter dated 5 April 2005, addressed to the Bureau of Naval Personnel (PERS-311). It reflects the report for 3 December 2003 to 15 September 2004 is extended to Petitioner’s detachment on 12 November 2004. The stated reason for the extension was “Request removed [sic] detachment fitness report dated O4SEP16-O4NOV12 in members [sic] record and replace it with this extension letter of fitness report.” In Petitioner’s headquarters record, the contested report has not been removed, nor has the reporting senior’s extension letter been filed.
f. Petitioner contends his command’s message was sent to a non-existent code within NPC, that is was not properly received, and that leaving the contested report in his record is against the intention of his reporting senior/CO.
g. In correspondence attached as enclosure (2), PERS-311, the NPC office having cognizance over the subject matter addressed in Petitioner’s application, has commented to the effect that his request should be denied. They stated “The reporting senior cannot remove a valid report.” They concluded that “...the report is valid and cannot be removed via [this Board]
CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the contents of enclosure (2), the Board finds the existence of an error and injustice warranting removal of


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the contested report and extension of the uncontested preceding report. The Board finds that the reporting senior/CO clearly intended that the contested report be removed and replaced with the extended report. The Board agrees the reporting senior, acting alone, did not have authority to remove the report. However the Board concludes the GCMA believed he had that authority, and on that basis erroneously caused Petitioner’s Article 138 proceedings to be terminated prematurely, before the Office of the Secretary of the Navy had had a chance to consider lawfully directing that the report be removed in accordance with the wishes of the officer who had submitted it. The Board is confident that this relief would have been directed, had the proceedings not been terminated prematurely. In view of the above, the Board recommends the following corrective action:

RECOMMENDAT ION:

 a. That Petitioner’s naval record be corrected by removing therefrom the following fitness report and related material:
          Period of Report
Date of Report   Reporting Senior                  From    To
2 Dec 04         LCD      USN      16 Sep 04        12 Nov 04

b. That the fitness report for 3 December 2003 to 15 September 2004, dated 24 September 2004 and signed by LCDR, USN, be extended to 12 November 2004.
c. That Petitioner’s record be corrected further by removing any reference to the withdrawal of his recommendation for advancement on or about 12 November 2004.
d. That appropriate corrections be made to the magnetic tape or microfilm maintained by the Navy Personnel Command.
e. 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.
f. 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.



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4. 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.
         

JONATHAN S. RUSKIN
Acting Recorder
 ROBERT D. ZSALMAN
Recorder

5. The foregoing report of the Board is submitted for your review and action.








Reviewed and approved:





















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DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
1610
PERS-311
3 August 2005
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

Via:     PERS/BCN7R Coordinator (PERS-3LC2)

Subj:

Ref:     (a) BIJPERSINST 1610.10 EVAL Manual
(b)      USS GUARDIAN 1 100238z APR 05
(c)      Commander, Mine Warfare Command ltr 5354 Ser O1L/124 of 18 April 2005

End:     (1) BCNR File

1. Enclosure (1) is returned. The member requests the removal of his fitness report for the period 16 September 2004 to 12 November 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. 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 5, paragraph S-9, the member may submit a statement within two years from the ending date of the report.

b. The report in question is a Detachment of Individual/Regular report. The member request the report in question be removed and the report for the period 3 December 2003 to 15 September 2004 remain in the record and extend that report to 12 November 2004.

c. The member transferred from the command on 12 November 2004 and reported to his next command on 12 November 2004. Reference (b) stated the report ending 15 September 2006 had been extended to 12 November 2006 and was used as a detaching fitness report and the fitness report ending 12 November 2006 had been withdrawn and replaced with extension letter.

d. The reporting senior cannot remove a valid report. The reporting senior may supplement the report in accordance with reference (a), Annex P. PERS-3 11 ‘s opinion is that the report is valid and cannot be removed via the BCNR.




 e. The member filed an Article 138, however, per reference (b) the GMCA determine the issue was moot. The member may resubmit his Article 138 for a determination on his redress.
f. 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
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