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NAVY | BCNR | CY2006 | 10863-06
Original file (10863-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 HD:hd
Docket No. l0863—06
19 July 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 July 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 opinion furnished by the Navy Personnel Command dated 26 March 2007, a copy of which is attached. The Board also considered your letter dated 17 July 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. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. The Board was unable to find the contested fitness report was used as a substitute for disciplinary action. The Board was likewise unable to find the reporting senior lacked sufficient basis for his finding that you had engaged in “inappropriate conduct.” On the contrary, your statement in reply to the contested fitness report revealed that the reporting senior had “received a letter from a woman [you] had been dating alleging harassment.” 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 on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,




                                                                        W.DEAN PFEIFFER
                                                                        Executive Director
        
Enclosure




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


 PERS-31 1
26 March 2007


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Via:     PERS/BCNR Coordinator (PERS-3 1C)



Ref:     (a) BUPERSINST 1610.1OA (EVALMAN)

End:     (1) BCNR File 10863 W/Service record

1.       Enclosure (1) is returned. The member requests the revision of his fitness report for the period 1 February 2006 to 17 July 2006.

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 intended to make a statement. The member’s statement and reporting senior endorsement have been received by PERS-3 11 to be included in the member’s permanent record.

b.       The report in question is a non-adverse Detachment of Reporting Senior/Regular report ending 17 July 2006. The member believes the report failed to comply with reference (a). He alleges the performance trait marks are inconsistent with the comments on performance in block
41.      Also, the member alleges report is adverse and report may have been used as punishment for misconduct.

c. The report is a valid report. A performance evaluation is unique to period being evaluated.

d.       The report in question specifically states the following in block 41, Comments on
Performance:

“Recently counseled for inappropriate conduct.”

Reference (a), chapter 13, page 13-7, and subparagraph 13-12 (a) — General Commenting on Misconduct, specifically addresses how and when a reporting senior must document details of misconduct in a member’s performance evaluation report. It allows reporting seniors to ‘include comments on misconduct whenever the facts are clearly established to the reporting senior’s


satisfaction’. The fitness report was accurately prepared and submitted by the reporting senior in accordance with reference (a).
e.       The reporting senior is charged with commenting on the performance or characteristics of each member under his/her command and determine 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.
f.       The member does not prove the report to be unjust or in error.
3.       We recommend the member’s record

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