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NAVY | BCNR | CY2006 | 07367-06
Original file (07367-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
 -        WASHINGTON DC 203705100
HD:hd
Docket No. 07367-06
22 January 2007



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 19 January 2007. 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 5 and 14 December 2006, copies of which are attached. The Board also considered your letter dated 16 January 2007.
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. The reporting senior’s letter dated 8 August 2006, submitted by a retired officer nearly five years after the pertinent reporting period, did not persuade the Board that he made an administrative error when he marked you “3.0” (third best of five possible marks) vice “4.0” (second best) in blocks 34 (“Equal Opportunity”) and 35 (“Military Bearing/Character”) of the fitness report for 1 February to 28 September 2001. Since the Board found no defect in your performance record, it had no grounds to grant you a special selection board or remove your failure of selection by the Fiscal Year 07 Staff Commander Selection Board. 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.







Although the Board voted not to modify the fitness report in question, you may submit the reporting senior’s letter to future selection boards. As the advisory opinion dated 5 December2006 notes, you may also request the reporting senior to submit supplementary material. Concerning the statement, in paragraph 2. f of this opinion, that “ Selection boards are briefed that any supplemental changes are the report of record and should disregard the evaluative information on the original report,” it is noted that Bureau of Naval Personnel Instruction l610.1OA, enclosure (2), paragraph 15-4 states “Supplemental material does not replace the original report on the member’ s Official Military Personnel file nor does it change the information on the member’s Performance Summary Record; it only supplements the original report.”

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 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,



ROBERT D. ZSALMAN
Acting Executive Director


Enclosures















2


DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
                                             5720 INTEGRITY DRIVE
                 MILLINGTON TN 38055-0000        
                                                               1610
          -        -        PERS-311
                           5 December 2006


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

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

Ref:     (a) BUPERSINST 1610.10 EVAL Manual

End:     (1) BCNR File 07367-06 w/Service records

1.       Enclosure (1) is returned. The member requests revisions are made to his fitness report for the period of 1 February 2001 to 28 September 2001.

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 on the report that he did not intend to make a statement.

b.       The fitness report is a non-adverse, Detachment of Individual/Regular report. The member characterized the fitness report as “declining” and request his performance trait marks in block 34, Equal Opportunity, and block 35, Military Bearing, are changed from 3.0 to 4.0. Additionally, the member requests that the changes are subsequently reflected on his Performance Summary Report and a special selection board is convened; or in the alternative, the member’s failure to select is removed and he’s placed in zone as eligible for promotion.

c.       The fitness report is a valid report. Per reference (a), a report is considered “declining” when the promotion recommendation is reduced or because of a reduction in at least two trait grades in the same paygrade by the same reporting senior.

d.       The fitness report in question was issued to the member when he was an 03 (Lieutenant) in 2001. Subsequently, the member’s record was reviewed and he was selected for promotion to the grade of Lieutenant Commander, with this report in his record. Per the member’s letter dated 16 August 2006 in enclosure (1), he ‘exercised due diligence with regards to maintaining his personal record by reviewing it for completeness before his promotion board several times’. However, it was not until 17 July 2006, after he failed to select on July 11, 2006 before the Commander FY-07 Staff active duty promotion board #265, that the petitioner contacted his previous reporting senior who issued the report in quesuor regarding the 3.0 trait marks issued.

e.       Per reference (a), Annex P, page P-i, subparagraph P-2 General Policy specifically states the following:

“After a fitness or evaluation report has been filed in the official BUPERS record and/or field service record, it may be modified only through administrative changes or the addition of supplementary material, discussed in this annex, or through an appeal process (discussed in Annex S). Administrative changes correct the administrative blocks of the
fitness or evaluation report. Supplementary material clarifies, amends, or corrects the evaluative blocks.”

f.       Reference (a), Annex P, page P-2, paragraph P-8, subparagraph (b) continues to address the entry of changes and supplements in BUPERS Automated Data Files and Performance Summary Records. This section states ‘amendments or additions to the evaluative blocks (i.e., grades and recommendations) are regarded as supplements to the original report, rather than changes. They are not entered into the automated file and PSR, but a notation will appear on the PSR to indicate that supplementary material has been placed in the image file.’ Selection boards are briefed that any supplemental changes are the report of record and should disregard the evaluative information on the original report.

g.       The subject of late submission of supplementary material is also addressed in reference (a), Annex P, page P-i. It states that ‘supplementary material submitted more than 2 years after the report ending date will be accepted only if the reporting senior demonstrates in a cover letter, to COMNAVPERSCOM (PERS-31 1), why the material could not have been submitted in a more timely manner. Reconsideration by the reporting senior, or a member’s failure of selection, will not justify late submission of supplementary material. There must have been circumstances beyond the reporting senior’s control’.

h.       If directed by the Board for Correction of Naval Records, PERS-3 11 will accept a Letter-Supplement prepared by the reporting senior; however, we do not recommend any further action be taken by the board.

i.       The member does not prove the report to be unjust or in error.

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



                                                                                          By Direction






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

5420
PERS-480/
 14 December 2006
MEMORANDUM FOR   EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Via:     Assistant for BCNR Matters (PERS-31C)
Subj:    REQUEST FOR COMMENTS AND RECOMMENDATIONS IN CASE OF

Ref:     (a) PERS-311 memo dtd 5 December 2006
End:     (1) BCNR File 07367-06 w/Service record
1.       Enclosure (1) is returned. Concur with the comments and recommendations provided in reference (a) regarding the fitness report in ~ was fairly and accurately presented to the FY-07 Active Commander Judge Advocate General Corps Selection Board. His failure of selection during the FY-07 selection board should not be removed.
2 Recommend disapproval request for removal of his failure of selection disapproval of his request for a special selection promotion board.



                                                               Officer Career Progression Branch

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