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NAVY | BCNR | CY2005 | 07493-05
Original file (07493-05.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
 BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 203705100
HD:hd
Docket No. 07493-05
4 May 2006









Dear Commande r
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 4 May 2006. 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 opinions furnished by the Navy Personnel Command dated 3 November and 12 December 2005, copies of which are attached.

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 opinions. The Board duly noted the guidance, in Naval Military Personnel Manual Article 1611-010, that “matter of interest” holdings should not be “in lieu of or a substitute for appropriate [emphasis added] markings and comments” in fitness reports. The Board concluded that your fitness report for 1 September to 14 December 2004, which made no comment at all on the significant matters reflected in the contested material, did not make “appropriate” comment on those matters. 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 ,



W. DEAN PFEIFFER
Executive Director


        




Enclosures


















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DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055.0000


1920
Ser 4834/
3 Nov 05
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION
OF NAVAL RECORDS

Via: Assistant for BCNR Matters, PERS-OOZCB
Subj: REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE OF USN

.
Ref: (a) PERS OOZCB Memo 5420 Pers—3LC2 of 13 Oct 05
(b) CCSG 9 hr 1611 Ser NOOJ/022 of 21 Jan 05 w/ends
(c) MILPERSMAN 1611-010

1. In response to reference (a), the following information is provided:

a. CDR requesting the removal of reference (b) and its contents from his official record. Reference (b) is the request to file COMPACFLT Hotline Complaint 040053L as a matter of special interest. After thorough review of all pertinent documents and instructions it is determined C request should be denied and the COMPACFLT Hothine investigation should remain in his official record.
b. The primary investigator substantiated 1 of the 3 allegations and added a fourth (sub) . However the second and third endorsers substantiated 3 of the 4 final allegations. It should be noted, the primary investigator was a member of C ommand. The second and third endorsers were Commander Carrier Strike Group NINE and Commander, Naval Surface Force, U.S. Pacific Fleet.
c. The matter of interest holding ws filed in strict adherence with reference (c) . Navy Personnel Command determines whether records or reports of formal or informal investigations should be held to contain a matter of interest. Commander, Naval Personnel Command made that determination. In cases where additional information regarding an officer’s performance becomes available subsequent to their transfer to another command a supplementary fitness report is normally considered appropriate. Due to the timing of CDR transfer, the completion of the report of investigation, and the audit completed by the Field Examination Group Pacific, a supplementary fitness report would have been inappropriate. Hence, the matter of interest was appropriate.



SubI:   

d. CD R submitted a response to the request to file the COMPACTFLT hotline complaint as a matter of special interest on 9 May 05. Regardless of the wording of the notification letter to CDR response was indeed considered in the decision to file the hothine complaint as a matter of special interest. The request was found to be in compliance with governing regulations and the COMPACTFLT hothine complaint was filed in official record as a special matter of interest.
2. I may be reached at Commander



 Assistant, Officer Performance
and Separations Section
























2




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

5420
Ser 00J3/097
12 Dec 05
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION
OF NAVAL RECORDS

Via:     Assistant for BCNR Matters, PERS-3LC2

Subj:    REQUEST FOR ADVISORY OPINION ICO CDR
        

Ref: (a) CNPC (PERS-3LC2) Memo of 8 Nov 05
(b) MILPERSMAN 1611-010

 1. Reference (a) requested this office provide comments on Petitioner’s request to remove service record documents related to a “matter of interest” holding stemming from a Commander Pacific Fleet hothine complaint report of investigation.
2. The petitioner claims that the “matter of interest” (MOI) holding is improper and unjust. Petitioner contends that reference (b) only allows the filing of a report of investigation as a MOI for the purpose of explaining an excerpt contained in a separate official document. He argues that since there was no mention of this adverse information in his detaching fitness report, then the investigation should not have been filed in his official record. On the contrary, reference (b) gives Commander, Navy Personnel Command (CNPC) full authority to determine whether a report is filed as a MOI, regardless of whether or not comments are included in the officer’s fitness report.
3. The purpose of filing MOI holdings into the officer’s record is to fully inform interested parties, including selection boards, of relevant information concerning the officer’s performance. CNPC has a duty to ensure that such parties are fully informed and have a full and complete picture of every officer. Although reference (b) does indicate that MOIs should not be used in lieu of disciplinary action or in place of comments in fitness reports, it is promulgated as guidance only and does not create a legal requirement that binds CNPC.
4. It is preferred that officer misconduct be addressed through the nonludicial punishment (NJP) or courts-martial process.


Subj: REQUEST FOR ADVISORY OPINION ICO, USN

However, there are times when the officer’s conduct is not severe enough to warrant punishment. Other times the command may just choose not to refer the matter to NJP or courts- martial. That does not mean the information concerning the officer’s conduct should not be made available to those who determine future compatibility and service in the Navy. Such information is still relevant and reflective of the officer’s performance. In those instances, a MOI holding may be the only mechanism to fully document that conduct.

 5. Petitioner also argues that Pers-483 made the final determination to file the investigation into his record prior to allowing him an opportunity to respond, thereby violating rights contained in reference (b) . Petitioner refers to the wording in his notification letter as the sole basis for that contention. Although the notification letter is not well worded, CNPC did not make a final decision nor take action to file the investigation into his record until after Petitioner was afforded an opportunity to respond. As such, CNPC did not violate reference (b) as Petitioner contends.

6. To conclude, I do not find any merit in Petitioner’s arguments.





 LT, JAGC, USNR
Assistant Legal Counsel


















2

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