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NAVY | BCNR | CY2006 | 00633-06
Original file (00633-06.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. 00633-06
11 September 2006
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
          Subj:    REVIEW RECORD
         Ref:     (a) 10 U.S.C. 1552

 End:     (1) DD Form 149 dtd 28 Dec 05 ~ attachments
 (2)      PERS—311 memo dtd 20 Apr 06
(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 enlisted performance evaluation report for 16 March to 4 December 2004. A copy of this report is at Tab A.
2.       The Board, consisting of Ms. Nofziger and Messrs. Boyd and Washington, reviewed Petitioner’ s allegations of error and injustice on 8 September 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.       Petitioner contends the contested report, submitted on her detachment, violated the prohibitions in Chief of Naval Operations Instruction 6000.1B against adverse performance evaluations by reason of pregnancy or performance evaluation comments on pregnancy.



         d.       The contested report includes no adverse mark, however, it reflects a mark of “2.0” (second lowest of five possible marks) in block 36 (“Military Bearing/Character”). All the other marks are “3.0” (third best), and block 45 (“Promotion Recommendation” is marked “Promotable” (third best of five possible marks). In block 43 (“Comments on Performance”), the first sentence expressly mentions Petitioner’s pregnancy, and the last sentence refers to her “status.” These sentences read as follows:
Evaluation submitted on the occasion of [Petitioner’s] pregnancy and subsequent transfer while on deployment in support of OPERATIONS IRAQI/ENDURING FREEDOM.
[Petitioner’s] status precludes her from completing her obligated sea time which will necessitate assignment to sea duty as soon as she is capable of being detailed.
e.       Petitioner’s marks in the immediately preceding report from the same command, for 16 October 2003 to 15 March 2004, were “4.0” (second best) in all areas, including block 36. Block 45 was marked “Must Promote” (second best). A copy of this report is in enclosure
 (1)

 f.       In correspondence attached as enclosure (2) , the Navy Personnel Command (NPC) office having cognizance over the subject matter addressed in Petitioner’s application has commented to the effect that the contested report should be modified by removing the first and last sentences from block 43, as these refer to Petitioner’ s pregnancy. They stated it cannot be assumed that the mark in block 36 was not based on her “medical condition.”
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 injustice warranting complete removal of the contested report. The Board particularly notes Petitioner’s much more favorable preceding report in concluding that the command did allow her pregnancy to prejudice her appraisal. In view of the above, the Board recommends the following corrective action.
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RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected by removing therefrom the following enlisted performance evaluation report and related material:
          Period of Report
 Date of Report   Reporting Senior         From     To
          6Dec04 16Mar04 4Dec04
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 such 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 NPC.
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 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.

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
















Reviewed and approved:


 Robert T. Cali
 Assistant General Counsel
Manpower and Reserve Affairs





















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DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
                                             5720 INTEGRITY DRIVE
          MILLINGTON TN 38055-0000        
         1610
                                              PERS-311
                                                                                                   20 April 2006
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

Via:     PERSIBCNR Coordinator (PERS-31C)
         Subj:

 Ref:     (a) BUPERSINST 1610. tO (EVALMAN)
End:     (1) BCNR File 00633-06 w/Service record
 (2) NAVPERS 1616/23 Memo
1.       Enclosure (1) is returned. The member requests the removal of her performance evaluation report for the period 16 March 2004 to 04 December 2004.
2.       Based on our review of the material provided, we find the following:
a.       The report in question is a non-adverse Detachment of Individual/Promotion Frocking/Regular report ending 04 December 2004. The member alleges the report to be in error and unjust based on noncompliance with regulations in block 43, Comments on Performance, regarding her ‘pregnancy’.
b.       A review of the member’s headquarters record revealed the report in question to be on file. It was signed by the reporting senior on 06 December 2004 and was annotated “Unsigned Advance Copy” in block 51, Signature of Individual Evaluated. The member did not sign the report.
c.       The report was received by PERS-3 11 on 21 June 2005 and examined for accuracy and compliance with reference (a) on 23 June 2005. The report was submitted in error and rejected for the following error code with reason:
Error Code: 51A
 “The report is not signed by the member. The reporting senior may write “Certified Copy
Provided” in the member’s signature block if the report is not adverse. “Unsigned
Advance Copy’’ is no longer an authorized entry.”
After examination, the reject information is automatically available for review by the member on
their Continuity Report, which is available on BUPERS On-line (BOL).




d.       A signed or properly annotated report has never been received from the reporting senior or. member to correct the error found on the member’s report.

e.       Per enclosure (2), the uncorrected report in question was accepted as originally submitted to the member’s record, attached with an NAVPERS 1616/23 (Memo) over 9 months after the report had been issued to the member.

f.       Selection Boards are briefed that reports, which have been rejected and returned for correction, are accepted with a memorandum action after 90 days when no response has been received.

g.       Per reference (a), members are responsible to ensure the continuity of their FITREP or EVAL record. Service members should also review their records periodically and take action to correct oversights. This review should be completed at least 6 months prior to any board convening date. Members should review their Continuity of Reports on BOL approximately 60 days after the report(s) are signed and mailed to COMNAVPERSCOM. Had the member reviewed her fitness report record, as recommended, administrative processing on behalf of PERS-3 11 would not have been required.

h.       In view of the comments in enclosure (1), we recommend the performance evaluation for the period ending 04 December 2004 be amended by removing the following statements:

         “Evaluation submitted on the occasion XXXX pregnancy and subsequent
         transfer while on deployment in support . in IRAQI/ENDURING
         FREEDOM”, and “Petty Officer XXXX is precludes her from completing her
         obligated sea time which will necessitate assignment to sea duty as soon as she is capable
         of being detailed.”
i.       Per reference (a), the competencies associated with trait grades are printed on the form, along with representative performance standards. The Military Bearing/Character performance trait, block 36, requires reporting seniors to factor in personal appearance, conduct, adherence to Navy Core Values and physical fitness. In reviewing the performance evaluation, we cannot assume that the trait grade of ‘2.0’ was assigned due to an existing medical condition.

j.       The member does partially prove the report to be in error.

k.       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 comments and performance trait marks assigned on a report are at the discretion of the reporting senior. The evaluation of a member’s performance and making recommendations concerning suitability for appointment and assignments are the responsibility of the reporting senior.




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 3.       We recommend the member’s record remain unchanged except as indicated above.


                          



                                                                        By direction
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