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NAVY | BCNR | CY2006 | 03856-06
Original file (03856-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2037b-5100
                           HD:hd
                           Docket No. 03856-06
                           8 January 2007

From:    Chairman, Board for Correction of Naval Records

Ref: (a) 10 U.S.C. 1552

End:     (1)      DD Fo m 149 dtd 17 Apr 06 w/attachments
(2)      PERS- 11 memo dtd 25 Aug 06
(3)      Subje t’s naval record

1. Pursuant to t e 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 modifying the fitness report for 16 September 2001 to 15 September 2002 (copy at Ta A) by deleting the following statement from block 41 (“Comments on performance”): “-NJP [nonjudicial punishment] date
of conviction w s 26 Nov 01 with a concluding date of 03 Dec 01.”

2. The Board, consisting of Ms. Nofziger and Messrs. Bowen and Dawson, reviewed Petitioner’s allegations of error and injustice on 5 January 2007, 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 NJP referenced in the disputed statement was set aside by commanding of fic r (CO) action of 17 May 2004, a copy of which is in enclosure (1). T e CO determined that the NJP was a “clear injustice,” so he concluded that action after the four-month period normally deemed reasonable was
warranted. The Navy Personnel Command (NPC) has administratively removed from Petitioner’ s naval record all reference to the NJP, except the contested statement in his fitness report.

                   d. In corres p ondence attached as enclosure (2), PERS-3 11, the NPC office having co g nizance over fitness reports, has commented to the effect that Peti t ioner’s request should be denied, as the NJP was properly documen t ed in his fitness report when it was imposed, and the set aside act i on took place about two years and si x months after the report was sued.

CONCLUSION:
         Upon review and consideration of all the evidence of record, and notwithstanding he contents of enclosure (2), the Board finds the existence of an i justice warranting the requested relief. Since the NJP was set aside y lawful action of Petitioner’s CO. the Board finds no reference to ½ should appear in his naval record, regardless of when it was set a s ide. The Board finds no justification for removing all other reference to the NJP, while leaving are re ference in Petitioner’ s fitness report. In view of the above, the Board recommends the following correc t ive action.

 RECONMENDATI O N:
a. That Peti t ioner’s naval record be corrected by modifying as follows the fitness report for 16 September 2001 to 15 September 2002, dated 6 September 2002 and signed by Commander A. R. Paige, USNR:
Block 41 Delete the last statement:      “-NJP date of conviction was 26 Nov 01 with a concluding date of 03 Dec 0 .“
b.       That any material or entries inconsistent with or relating to the Board’ s
reconditions be corrected, removed or completely expunged from Petitioner’ record and that no such entries or material be added to the record in the future.
c.       That any m a terial directed to be removed from Petitioner’s naval record be return d to the Board, together with a copy of this Report of Proceedings, or retention in a confidential file maintained for such purpose, wit no cross reference being made a part of Petitioner’s


4. It is certified that a quorum was present at the Board’s review and deliberation , and that the foregoing is a true and complete record of the Board’s p r oceedings in the above entitled matter.

         ROBERT D. ZSAL MAN         JONATHAN S. RUSKIN
         Recorder         Acting Recorder

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


W.       DEAN PF EIFFER



Reviewed and Approval


c~

RObert T. Call
 Genral Oau
 Mand Reww AtI~1r3)













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3
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
I
         MILLINGTON TN 38055-0000         1610
                  PERS-311
          25 August 2006
MEMORANDUM FOR HE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS





Ref:     (a) BUPERSINST 161010 (EVALMAN)

End:     (1) BCNR File 03 56-06 w/Service record

1.       Enclosure (1) is ret med. The member requests the removal of specific comments in his fitness report for the pen d 16 September 2001 to 15 September 2002.

2.       Based on our review f the material provided, we find the following:

a.       A review of the m mber’s headquarters record revealed the report in question to be on file. It was signed by the me ber on 13 September 2002 acknowledging the contents of the report and his right to submit a stat ment. The member indicated on the report that he intended to make a statement, however a sta ement was not submitted.

b.       The report in qu stion is a Periodic/Regular report er~ding 15 September 2002. The member requests the rep rt be revised by removing the statement regarding NJP action listed in block 41, Comments on Performance. The member believes that based on the subsequent Set Aside of NJP by the Na al Reserve Recruiting Area Southeast Commanding Officer, which took place on 17 May 2004, pproximately 2 years 6 months after the fitness report was issued, that the statement should be moved.

c.       The report is a v lid report. A performance evaluation is unique to the period being evaluated.

d.       The report in ques ion specifically states the following:

“Non-Judicial Punishm nt date of conviction 26 November 2001 with a concluding date of 3 December 200Th”

The date of conviction d concluding date was listed as required on the fitness report and the report was signed by t reporting senior after the concluding date of the NJP proceedings. Reference (a), annex N, age N-5, and subparagraph N- 13 (b) - Comments on Misconduct,








Judicial or NJP Proc edings and Corrective Measures, specifically addresses how and when a reporting senior mus document details of misconduct in a member’s performance evaluation report. The fitness eport was accurately prepared and submitted by the reporting senior in accordance with refe ence (a).

e.       Reference (a), cx 5, Member Input, Review of Record, Statements and Appeals, paragraph S-12, Statem nt to the Record provides information needed by members to understand their rights and respons bilities, and to submit input to reports, review and correct their records, and submit statements nd appeals. The member chose not to submit a Statement to the Record for the report ending 15 September 2001.

f The reporting sen r is charged with commenting on the performance or characteristics of each member under his er command and determine what material will be included in a fitness report. The comments d performance trait marks assigned on a report are at the discretion of the reporting senior. T e evaluation of a member’s performance and making recommendations concerning suitability r appointment and assignments are the responsibility of the reporting semor.
                  g. The member does       ot prove the report to be unjust or in error.
         3.       We recommend the         ember’s record remain
C
         I
By direction
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