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NAVY | BCNR | CY2007 | 08254-07
Original file (08254-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 RD hd
 Docket No. 08254-07
27 January 2008










This is in reference to your application for correction of your n ava l r ecord 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 25 January 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 15 November 2007, a copy of which is attached. The Board also considered your letter dated 19 December 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. 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
          E xecutive Director


Enclosure


































2
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
PERS-31 I
15 November 2007



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

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



Ref:     (a) BUPERSINST 1610.1 OA (EVALMAN)

End:     (1) BCNR File 08254-07 w/Service record

1 Enclosure (1) is returned. The member requests removal of evaluation reports covering the periods of 16 June 2006 to 27 January 2007 and 27 January 2007 to 15 June 2007 both have adverse performance trait grades, not recommended for retention and promotion recommendations.

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

a.       A review of the member’s headquarters record revealed the evaluation reports in question are not on file, however, a copy of the reports are present in enclosure (1). The 27 January 2007 evaluation report was signed by the member acknowledging the contents of the report and his right to submit a statement. The report ending 15 June 2007 was not signed by the member.

b.       The first evaluation report in question covering the period of 16 June 2006 to 27 January
2007 is an adverse Detachment of JndividuallRegular report. The member states the report was
in reprisal for his inability to perform his duties due to a medical procedure that went wrong.
Additionally, member states he was harassed, denied proper medical care that led him to file an
Inspector General complaint against his Command.

c.       The evaluation report covering the period of 27 January 2007 to 15 June 2007 is an adverse Periodic/Regular report that was submitted upon the member’s separation from the U.S. Navy. The member states the evaluation report was adverse because of his previous reporting senior contacting the reporting senior at the Transfer Personnel Unit.

d.       The evaluation reports are both valid reports. Performance evaluations are unique to the specific periods being evaluated, whether these evaluation reports are consistent with previous or subsequent reports has no bearing on the validity of the report.
e.       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 evaluation reports were accurately prepared and submitted by the reporting senior’s 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 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 reportiu 1 seior. The evaiua~tiqn of a member’s performance and making recnend~u~
 ~

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. Although enclosure (1) includes a letter, subject:
Complaint of Wrongs under Article 138 in case of the petitioner, the concluding results of that complaint was until member met the definition of section O 3 03g of the JAGMAN no further action to be taken in support of his petition.

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

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




,4’OHN I. FkANTZ
(,A3y direction
















2

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