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NAVY | BCNR | CY2007 | 07580-07
Original file (07580-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2Q37O-5100




 HD:hd
Docket No. 07580-07
29 February 2008

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 28 February 2008. 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 27 September 2007, a copy of which is attached.
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. Accordingly, 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
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
 MILLINGTON TN 38055.0000       

         1610
                                                       PERS-3l1
                                                                                                   27 September 2007


MEM ORANDUM FOR THE EXECUTIVE DWECTOR, BOARD FOR CORR E CTION OF
NAVAL RECORDS

 Via:     PERS/BCNR Coordinator (PERS-3LC2)
Fuel:    (I) BCNR File (‘ 7 580M7 w/S erv ice record
Enclosure (1) is returned. The member requests the TC\ dec ision of his fi tn ess report ltr the period 1 November 2005 to 5 October 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; however a statement has not been recei ~ed by PERS-3 I] at this time. Per reference (a), Chapter 1 8~ the member has two years from the ending date of the report to submit a statement; the two-year period has not lapsed.
b.       The report in question is a non-adverse Detachment of Individual/Regular report. The member requests the revision of the fitness report due to the comments listed by the reporting senior are inconsistent with reference (a), that he was not counseled on his deficiencies and adverse letter to member for statement was not provided to him. The member states the fitness report was used as punishment for an investigation that was later dismissed with warning. Additionally, he feels the report is inconsistent with his previous fitness reports and should be revised.
c.       The report is a valid report. Performance evaluations are unique to the specific period being evaluated, whether this fitness report is consistent with previous or subsequent reports has no bearing on the validity of the report. Counseling methods are up to the commanding officer or officer in charge.
d. Per reference (a), Chapter 14, exhibit 14-1, Letter Referring Adverse Report to Member for Statement, this type of letter is issued to the member to notify them that their performance report
contains an adverse matter. This document is not maintained in the official military personnel file.

e.       The member in his petition identified performance trait grades in blocks 35, Military Bearing/Character, and promotion recommendation in blocks 42 and 43 as not being consistent with the comments written in block 41 of this report. Per reference (a), the competencies associated with trait grades are printed on the form, along with representative performance standards. The report in question states the following in block 41, Comments on Performance:

“Block 35: Isolated incident where he demonstrated poor judgment in an unprofessional relationship with a junior person.”

Reference (a), Chapter 13, page 13-7; subparagraph 13-12 (a) Genera1 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’. Additionally, although enclosure (1) provides a copy of the investigative report, the reporting senior made no mention of it; and nor was he required to do so. The fitness report was accurately prepared and submitted by the reporting senior in accordance with reference (a).

f.       The reporting senior is charged with commenting on the performance or characteristics of each member under his/her command and determines 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 advancement and assignments are the responsibility of the reporting senior.

g.       If the member believed the reporting senior prepared the report for reprisal or in retaliation he could have filed a complaint of wrongful treatment under one of the processes set up for that purpose, e.g. Article 138, Navy Hotline, etc.

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

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



By direction

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