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NAVY | BCNR | CY2007 | 01647-07
Original file (01647-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00



 HD
Docket No. 01647-07
16 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 12 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 24 April 2007, a copy of which is attached. The Board also considered your letter dated 28 May 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, except to note that the applicable directive was Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10, not BUPERSINST 1610.lOA, which is dated 20 September 2005. The Board particularly noted you did not provide documentation to establish the results of any of the judicial proceedings relevant to your case. The Board also noted the supplemental report made no express mention of any civil proceedings. The Board was unable to find you were not counseled about perceived deficiencies. In this regard, the Board generally does not grant relief on the basis of an alleged absence
 of counseling, as counseling takes many forms, so the recipient may not recognize it as such when it is provided. 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
        

Enclosure
































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

                                             1610
                                                                                                   PERS-311
                                                                                                   24 April 2007


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

Via:     PERS/BCNR Coordinator (PERS-3 1 C)

Ref:     (a) BUPERSINST 1610.1OA EVAL Manual

End:     (1) BCNR File 01647-07 w/Service record

1.       Enclosure (1) is returned. The member requests the removal of his original fitness report and supplemental fitness report letter with revised fitness report for the period of 01 March 2002 to 28 February 2003.

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

a.       A review of the member’s headquarters record revealed the original fitness report and member’s statement with reporting senior’s endorsement to be on file. The supplemental fitness report letter dated 9 July 2003 and the revised fitness report in question are not present in member’s file; however, these documents are present in enclosure (1). The revised fitness report was signed by the member on 11 July 2003 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 original report in question is an adverse Periodic/Regular report ending 28 February 2003. The member alleges the report was submitted based on alleged civil proceedings that were ongoing at the time report was issued. Additionally the member alleges the performance traits and comments were used as a substitute for corrective action and counseling was not performed during the entire period of report.

c.       Reference (a) requires reporting seniors to submit annual “Periodic” performance evaluations to members on a specified date in order to allow necessary processing time prior to statutory selection boards. The Periodic report due date for LTJG’s is scheduled for 28/29 February, which is why the report was issued to the member.



d.       Block 41 of the original report, Comments on Performance, makes no reference to an ongoing civil or administrative pending proceeding, however, it does state the following authorized observation listed by the reporting senior:

“Mission accomplishment subordinated by personal/civil issues”.

e.       The member states that counseling was not performed during the entire period of report; however, his statement indicates that verbal counseling did take place on 24 March 2003. Additionally, the original fitness report indicated in blocks 30 and 31 (date counseled and counselor) that mid-term counseling had been performed on 23 August 2002 by J. M. Andrews, although block 32 (signature of individual counseled) was not signed, which will not cause a report to be invalid.

d.       The adverse comments made in the supplemental fitness report letter and revised fitness report was documented as required upon the concluding date of the investigative report. Reference (a), Chapter 13, page 13-8, subparagraph 13-13(e) — Investigations and Investigative Reports, specifically addresses how and when a reporting senior must document details of misconduct after investigations have concluded in a member’s performance evaluation report. The revised fitness report was accurately prepared and submitted by the reporting senior in accordance with reference (a). Although these documents are included in enclosure (1), they had not been forwarded to PERS-3 11 prior to receiving this petition.

e.       The original fitness report and supplemental fitness report letter and revised fitness report are valid reports. The reporting senior has submitted in enclosure (1), and we will process the supplemental letter and revised report per the reporting senior’s request and place both documents in the member’s OMPF.

f.       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.

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

3.       We recommend the member’s record remain

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