DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-51 00

                                                   HD:hd
                                                   Docket No 06010-05
                                                   25 April 2006

From: Chairman, Board for Correction of Naval Records
To:   Secretary of the Navy

Subj: AOC (AW/SW) REVIEW OF NAVAL RECORD

Ref:    (a) 10 U.S.C. 1552
End:  (1)   DD Form 149 dtd 5 Jul 05 w/attachments
      (2)   PERS-311 memo dtd 25 Aug 05
      (3)   Subjects naval record

1.    Pursuant to the provisions of reference (a), Subject, hereinafter
referred to as Petitioner, filed written application, enclosure (1), with
this Board requesting, in effect, that the applicable naval record be
corrected by rewriting the fitness report for 16 September 2004 to 1 April
2005 (copy at Tab A) to reflect a “true” evaluation of his performance
during that period, or by removing the report.

2.    The Board, consisting of Ms. Ballinger and Messrs. Cooper and
Schultz, reviewed Petitioner’s allegations of error and injustice on 20
April 2006. Pursuant to the Board’s regulations, the majority, Ms.
Ballinger and Mr. Cooper, determined that the full relief indicated below
should be taken on the available evidence of record. The minority, Mr.
Schultz, recommended that the partial relief indicated below be approved.
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, which were 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, evaluating
Petitioner’s performance in his current grade of AOC (pay grade E-7),
reflects no adverse marks except for the “NS” [not within weight/body fat
standards] entry in block 20 (“Physical Readiness”), but the narrative is
almost entirely adverse. The observed marks assigned are “3.0”’s (third
best of five possible) and a promotion recommendation of “Promotable”
(third best of five possible). Block 41 (“Comments on Performance”) reads
as follows:

     Fitness Report submitted upon member’s PCS [permanent change of
     station] to NAVOPLOGSUPCEN Mechanicsburg, PA. [Petitioner] has
     performed marginally in my First Class Petty Officer [pay grade E-6]
     Safety billet. He must be directly monitored and given specific
     deadlines to accomplish the simplest tasks.

     - He did not review his Maintenance Training Program prior to the
     recent CSFWP MPA inspection. Inspectors found several instructions that
     were out of date. He did not actively monitor the Support Equipment
     Qualification section of the Monthly Maintenance Plan. SE Licenses
     failed to match Monthly Maintenance Plan during the inspection. Both of
     these functions are normally given to a First Class Petty Officer.
     Rather than lead and make necessary changes, AOC [Petitioner] became an
     impediment to completing these critical squadron functions. He was
     personally responsible for two of seven “Needs More Attention” grades
     for the entire squadron during the recent Maintenance Programs Assist
     inspection.

     -[Petitioner] has failed to pass the last four PFT [physical fitness
     (sic) test]s. He has not actively pursued his own medical treatment. He
     has been an asset in squadron MWR activities.

     This is a difficult FITREP [fitness report] for me to write. I
     currently have four First Class AQs in VFA-25 and each of them has
     outperformed AOC [Petitioner]. My current Maintenance Training P0
     [petty officer], an AT1 [pay grade E-6], is correcting AOC
     [Petitioner]’s mistakes prior to our next inspection. [Petitioner] is a
     likable man however; I cannot in good conscience mark him higher than
     Promotable.





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     d.     Petitioner contends the reporting senior gave him a “bad”
transfer report because of his “personal feelings” and not Petitioner’s
performance. He provided several supporting statements (in his enclosure
(4) to his application).

     e.     Enclosure (1) includes a three-page statement from Petitioner
dated 4 April 2005 in reply to the contested report, and the reporting
senior’s letter of 4 May 2005 in response to Petitioner’s statement (both
in his enclosure (2) to his application) . Neither document is in
Petitioner’s naval record. Paragraph 4 of the reporting senior’s letter
states “[Petitioner’s] grades and promotion category were exactly the same
as on his September 2004 FITREP. However, his performance had clearly
declined, and I commented on this decline in his
FITREP.”

     f.     In correspondence attached as enclosure (2), PERS-3ll, the Navy
Personnel Command office having cognizance over the subject matter
addressed in Petitioner’s application, has commented to the effect that his
request should be denied. They said his statement is not suitable for file
“as it is not in the proper format and exceeds the maximum number of pages
authorized.” They further stated if Petitioner believed he had been treated
unjustly, he should have submitted a complaint of wrongful treatment under
one of the processes for that purpose. They felt the supporting statements
did not show the contested report was in error. Finally, they noted this
report did not have to be consistent with reports for other periods.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (2), the majority finds an error and injustice
warranting removal of the contested report. The majority finds the marks,
which are not adverse, are entirely inconsistent with the narrative, which
is almost completely adverse. Further, the reporting senior’s letter of 4
May 2005 admits that he assigned Petitioner the same marks he had received
in the preceding report, when the reporting senior believed Petitioner’s
performance had declined. The majority feels this raises serious questions
about the reporting senior’s competence to submit a proper fitness report,
as well as his motives in submitting the report at issue. In view of the
above, the majority recommends the following corrective action:





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MAJORITY RECOMMENDATION:

     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
31 Mar 05   CDR
16Sep04        1Apr05
      USN

     b.     That there be inserted in Petitioner’s naval record a memorandum
in place of the removed report containing appropriate identifying data
concerning the report; that the memorandum state that the report has been
removed by order of the Secretary of the Navy in accordance with the
provisions of federal law and may not be made available to selection boards
and other reviewing authorities; and that such boards may not conjecture or
draw any inference as to the nature of the report.

     c.     That appropriate corrections be made to the magnetic tape or
microfilm maintained by the Navy Personnel Command.

     d.     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.

     e.     That any material directed to be removed from Petitioner’s naval
record be returned to this 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.

MINORITY CONCLUSION:

The minority believes the concerns the majority expresses can be remedied
more appropriately by adding to Petitioner’s record his statement and the
reporting senior’s response. Accordingly, the minority recommends the
following limited corrective action:

MINORITY RECOMMENDATION:

     a.     That Petitioner’s naval record be corrected by filing his three-
page statement of 4 April 2005 and the reporting senior’s response of 4 May
2005, to be furnished by the Board.



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     b.     That any material or entries inconsistent with or relating to
the minority’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 this 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. 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

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



                                       W.    DEAN PFEIFFER


MAJORITY REPORT
Reviewed and approved:____~ ~



MINORITY REPORT
Reviewed and approved:










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                           DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                            5720 INTEGRITY DRIVE
                          MILLINGTON TN 38055-0000
                                                                1610
                                                                PERS-31 1
                                                                25    August
                                                                2005

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

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

     Subj:  AOC (AW/SW

     Ref:   (a) BUPERSINST 1610.10 EVAL Manual

     End:   (1) BCNR File

     1.     Enclosure (1) is returned.  The  member  requests  his  fitness
        report for the period 16 September
     2004 to 1 April 2005 be re-written or removed from his record.

     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 provided a copy of his statement  and  the  reporting  senior’s
     endorsement. The member’s statement is not suitable for filing  as  it
     is not in the proper format and exceeds the maximum  number  of  pages
     authorized. Recommend the member resubmit his statement as outlined in
     reference (a).

        b.  The report is a Detachment  of  Individual/Regular  report.  The
     member alleges the report did not reflect the true evaluation  of  his
     professional performance.

        c.  We cannot make the requested changes to a fitness  report.  Only
     the reporting  senior  who  signed  the  original  report  may  submit
     supplementary material for file in the member’s record.

        d.  The fitness report  appears  to  be  procedurally  correct.  The
     reporting senior may comment or assign performance trait  marks  based
     on performance of duty or events that occurred  during  the  reporting
     period. Nothing provided in the member’s  petition  demonstrates  that
     the reporting senior acted improperly, violated requirements, or  that
     he abused his  discretionary  authority  in  evaluating  the  member’s
     performance. The reporting senior confirmed his reason  for  preparing
     the report as he did in his endorsement to the member’s statement.

          f. If the member believed there was  a  conflict  of  interest  or
             treated unjustly then the member should complaint  of  wrongful
             treatment under one of the processes set up for  that  purpose,
             Article 138, Navy Hotline, etc.


               g.  Chief              provided several  letters  of  support
from member’s who may have observed his performance  during  the  period  of
the report. The member’s may have observed events that  occurred,  but  they
were not responsible for assigning Chief    assignments  or  evaluating  his
performance. While their comments add insight and reflect favorably  on  the
member’s performance, they do not  show  that  the  fitness  report  was  in
error.

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

  i.  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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