DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hd
Docket No. 03894-07
16 January 2008
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
REVIEW OF NAVAL RECORD _
Ref: (a) 10 U.S.C. 1552
(1) DD Form 149 dtd 12 Apr O07 w/attachments
(2) PERS-311 memo dtd 12 Jun 07
(3) Subject's ltr dtd 7 Dec 07
(4) Subject's naval record
Encl:
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 27 August 2003 to 23 March 2004. A copy
of this report is at Tab A.
2. The Board, consisting of Ms. Humberd and Messrs. Boyd and
Neuschafer, reviewed Petitioner's allegations of error and
injustice on 10 January 2008, 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 adverse report was in
reprisal for his having sought better medical treatment for
himself and other injured veterans at his station. He provides,
with his application at enclosure (1), a supporting statement
dated 3 April 2007 from a rear admiral, strongly recommending
that the contested report be removed as unjust. The admiral,
who says he is "personally aware of the conditions" Petitioner
faced at the station that issued the contested report, notes the
stark difference between that report and the entirely
commendatory report for 16 June 2002 to 15 June 2003 Petitioner
received from his previous station. A copy of that report is
also with Petitioner's application at enclosure (1).
d. In correspondence attached as enclosure (2), PERS-311,
the Navy Personnel Command office with cognizance over
performance evaluations, has commented to the effect
Petitioner's request should be denied. PERS-311 notes a
performance evaluation report does not have to be consistent
with earlier or later reports. PERS~311 acknowledges that
Petitioner has provided "impressive letters and certificates"
but concludes "nothing has shown the fitness report in question
to be in error". Finally, PERS-311 states if Petitioner
believed the report at issue was in reprisal, he could have
filed a complaint of wrongful treatment. PERS-311 did not
expressly address the admiral's statement.
e. In enclosure (3), Petitioner responded to the advisory
opinion from PERS-311, stressing the significance of the
admiral's statement. Petitioner stated that the Chief of Naval
Personnel had sent the admiral to the station that issued the
contested report, that the admiral had concluded problems
existed there, and that his findings had led to changes in
operating procedures there.
CONCLUSION:
Upon review and consideration of all the evidence of record,
notwithstanding the contents of enclosure (2), and especially in
light of the admiral's statement, the Board finds an injustice
warranting the following corrective action:
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
13Apr04 27Aug03 23Mar04
USNR
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 the Navy Personnel Command.
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 ina
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner's naval record.
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.
\
Wdeeds
Ww. AN PF
Reviewed and approved:
Wax. Cas
\- RS -39
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