DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

HD:hd
Docket No. 02276-08
29 July 2008

From: Chairman, Board for Correction of Naval Records

 

To: Secretary of the Navy
Subj: 7

REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 27 Feb 08 w/attachments
(2) OPNAV N134 memo dtd 5 May 08
(3) PERS-311 memo dtd 8 May 08
(4) PERS-00J memo dtd 27 May 08
(5) Counsel’s undtd ltr w/attachments

(6) Subject's naval record

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 fitness report for

1 November 2004 to 1 April 2005, a copy of which is at Tab A.

2. The Board, consisting of Messrs. Butherus, J. Hicks and
Ivins, reviewed Petitioner's allegations of error and injustice

on 24 July 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 ina timely manner.
c. The contested fitness report, submitted on the occasion
of Petitioner's detachment from the Defense Attaché Office
(DAO), Zagreb, Croatia, was the second of two reports he
received at the same station from the same reporting senior, the
Defense Attaché who was an Army colonel. The preceding report,
for 7 July to 31 October 2004, a copy of which is at Tab B, was
entirely favorable, with a block 42 ("Promotion Recommendation" )
mark of "Early Promote" (best of five possible marks). All the
observed marks were "5.0" (best of five possible) or "4.0"
(second best), including a “4.0" in block 33 ("Professional
Expertise: Professional knowledge, proficiency, and
qualifications"). The contested report, for a period of five
months, had narrative remarks (block 41) that were almost
entirely derogatory. The block 42 mark was "Promotable" (third
best). Four of the six observed marks were "3.0" (third best);
and one, block 33, was "2.0" (second lowest). In both reports,
Petitioner was marked by himself, with no ranking against peers.

d. Petitioner alleges that on 10 December 2004, the
reporting senior assaulted his wife, and that the reporting
senior then told Petitioner that if Petitioner reported the
incident, he would ruin Petitioner's career. Petitioner's
wife's statement is at Tab M to his counsel's brief. Petitioner
further alleges that he received the contested report in
reprisal for having reported the incident to the command
(Defense Intelligence Agency (DIA)). He says he reported it to
them immediately after the incident with his wife.

e. At Tab G to Petitioner's counsel's brief is a letter
dated 6 May 2005 from DIA to Congressman Wolf, stating that on
learning of Petitioner's concerns initially raised in December
2004, DIA began an investigation in January 2005 that "revealed
the presence of morale issues" at the DAO. Specifically
concerning the contested fitness report, DIA stated the

following:

[Petitioner's] final fitness report from his superior
officer, Colonel S---, reflects the CDR [Commander]'s
performance throughout the entire rating cycle. The
report states that [Petitioner] is a talented naval
officer, but was unable to adapt well to the full
responsibilities of an attaché. At the beginning of
the rating period, Col S--- counseled [Petitioner] to
focus his efforts more on report production. Despite
Col S---'s repeated attempts to mentor [Petitioner]
and help him improve his performance, he did not
adequately meet specific expectations. DIA/DH
[Directorate for Human Intelligence] management
conducted an independent verification that [Petitioner]
was not performing at required levels and actively
supervised the preparation of this fitness report.

f. Petitioner provided substantial evidence indicating that
he was an outstanding naval officer, and that the reporting
senior was widely held in low regard.

g. In enclosure (2), OPNAV N134, the Navy's equal
opportunity office, commented to the effect that Petitioner's
request should be granted. Although they stated no apparent
equal opportunity issue was discerned, "There is compelling
evidence and documentation that contested FITREP [fitness
report] was unwarranted. Comments from personal email
exchanges, in particular, clearly indicate an atmosphere of
hostility directed against [Petitioner] (who exercised
considerable restraint in light of alleged aggression toward his

wife)."

h. In enclosure (3), PERS-311, the Navy Personnel Command
(NPC) fitness report office, commented to the effect that
notwithstanding the N134 opinion, Petitioner does not prove the
contested report to be unjust or in error, so his record should

remain unchanged.

i. In enclosure (4), PERS-00J, the NPC legal office,
commented to the effect “there is no discernable error with the
offending fitness report,” but if this Board finds probable
material injustice with retaining the report in Petitioner’s
record, it would not be legally objectionable for the Board “to

exercise its broad equitable power to correct the injustice.”

j- In enclosure (5), Petitioner’s counsel expressed
agreement with the N134 opinion and described the opinions of
PERS-311 and PERS-00J as “neutral.” He stated that a December

2007 charge sheet alleging the reporting senior had committed
assault “went unanswered by DIA until he retired.”

CONCLUSION:

Upon review and consideration of all the evidence of record,
especially in light of the contents of enclosure (2), and
notwithstanding enclosure (3), the Board finds an injustice
warranting the requested relief. Although the Board agrees with
the conclusion, in enclosure (4), that the contested fitness
report reflects no “discernable error,” the Board is
nevertheless convinced it is an unjust appraisal that warrants
removal. In addition to concurring with enclosure (2), the
Board particularly notes that the report at issue, covering a
period of only five months, was dramatically less favorable than
the preceding report at the same station from the same reporting
senior. While the marks, which are not adverse, did not have to
be justified, the Board seriously questions the reduction, in
block 33, from “4.0” to “2.0,” which suggests, without
explanation, that Petitioner’s knowledge, proficiency and
qualifications somehow drastically dropped. In view of the
above, the Board recommends the following corrective action:

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing
therefrom the following fitness report and related material:

Period of Report
From To
™ 1 Nov 04 1 Apr 05

Date of Report

_reporting oe
1 Apr 05 ic aan

   

  

a

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 the 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 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.

d. 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.

Bru TR WC for
JONATHAN S. RUSKIN
Acting Recorder

ROBERT D. ZSALMAN
Recorder

5. The foregoing report of the Board is submitted for your

review and action.
lyons p

W. DEAN PF

Reviewed and approved: