DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100

JSR
Docket No: 3937-08

14 August 2008

 

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

   

Subj : hy ae ae pt . al i a eee oy sae
REVIEW OF NAVAL RECORD (RECONSIDERATION)

Ref: (a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 17 Apr 07 w/attachments
BCNR ltr JSR Docket No. 09135-07

dtd 1 Nov 07 w/enclosure
(3) Subject’s ltr dtd 3 Apr 08 w/enclosures

(4) HOMC MMER/PERB memo dtd 23 Jul 08
(5) Subject’s ltr dtd 7 Aug 08 w/enclosures

(6) Subject’s naval record

1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by removing the
fitness report for 1 July 2005 to 24 March 2006, a copy of which

is at Tab A. Enclosure (2), the report of the Board in
Petitioner’s original case, shows the Board denied this request

on 1 November 2007. By enclosure (3), Petitioner submitted new
evidence and argument warranting reconsideration.

2. The Board, consisting of Ms. Humphrey and Messrs. W. Hicks
and Swarens, reviewed Petitioner's allegations of error and
injustice on 14 August 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 which were available under existing law
and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.

c. The contested fitness report is a transfer report
evaluating Petitioner’s performance of duty as procurement chief
in his current grade of master sergeant (pay grade E-8). The
portion of the report submitted by the reporting senior (RS), a
Civilian, was entirely favorable, including a recommendation for
promotion. However, the following non-concurring reviewing
officer (RO) comments in section K.4 made the report adverse (as
reflected in section A, item 5.a (“Adverse”)):

SNM [subject named Marine] is a versatile and knowledgeable
in his MOS [military occupational specialty], however during
this reporting period, his inability to keep his superiors
informed pertaining to his impending retirement or transfer
contributed to a confusing workplace. This SNCO [staff
noncommissioned officer] worked “deals” outside of the
command and kept changing his mind as to retirement/
transfer, which kept his billet (a high demand MOS) dbl
[double] filled for 7 months. This required the SgtMaj
[Sergeant Major] of the Marine Corps to get involved as

SNM had not kept the enlisted leadership of the command
informed either. I do not recommend him for promotion at

this time.

. Section K.3 (RO’s “Comparative Assessment”) assigned Petitioner
the fifth best of eight possible marks.

dad. The report at issue reflects the following reply dated
22 July 2006 from Petitioner to the RO’s comments:

It was never my intentions [sic] to hide, deceive or be
aloft [sic] with Col [Colonel] G--- [the RO] and the command
concerning my retirement decision. After I decided to
retire in November 05, the proper paperwork was submitted
and I started terminal leave in January 06. While on
terminal leave, the 3044 [contract specialist] MOS
Occupational Field Sponsor contacted me and stated that
the contracting MOS was very short of experienced Marines
and my leadership was needed. I then requested that my
retirement package be rescinded and orders issued for duty
at Camp Lejeune, NC. I took no measure to work a “deal”
with anyone concerning this whole issue. The decisions I
made were complex but for the good of the Marine Corps, my

family and my career on a whole. To receive an adverse
fitness report with negative promotion recommendation does
not accurately reflect the burden of my decision nor the
other decisions I made during the entire reporting period.
Lastly, having my replacement on board for three months
allowed me to have a proper turn over concerning the
Procurement Chief’s responsibilities and enabled me to
focus on the Director [Director of Contracting]’s

responsibilities.

e. The report also reflects the following comments dated 25
July 2006 from Colonel S---, the third Sighting officer who gave

as his title “Cheif [sic] of Staff”:

I have reviewed this report in its entirety. [Petitioner ]
is technically proficient and probably one of the best
contractors in the Marine Corps. That being said he was
a constant source of frustration to his OIC [officer in
charge], COS [chief of staff] and SgtMaj over his decision
to retire or PCS [permanent change of station]. One week
it was this and one week it was that. He was directed to
begin terminal leave and he would still show up for work.
He worked his own bolt with his monitor and his OIC had to
pry information out of him as to his status. I will
concede that his circumstances were unique with the
contractor community short experienced SNCOs but I concur
with Col G---‘s overall assessment. As I stated above,
exceptionally proficient in his MOS, but my assessment is
that [Petitioner] lacks the leadership skills tools to
suceed [sic] as a MGYSGT [master gunnery sergeant (pay
grade E-9)]. I do not recommend promotion at this time.

f. With his original application at enclosure (1),
Petitioner provided a statement dated 20 December 2006 from the
RS supporting his request. She expressed the opinion that the
contested report was “...unfair and not warranted.” She said
the RO had told her he disagreed with the evaluation she had
given Petitioner, but she had defended her reasoning and refused
to change the report “...because it was correct.” She said she
“...felt intimidated based on his position and rank as my
supervisor.” Petitioner also contended that the officer who
acted as the third sighting officer was not authorized to do so.

g. With his reconsideration request at enclosure (3),
Petitioner provided a statement dated 27 March 2008 (document 1
of 14) from Master Gunnery Sergeant C---, the 3044 MOS
Occupational Field Sponsor/Procurement Chief of the Marine
Corps. He concluded that the RO’s section K.4 comments were
“...unsupported and outside of the Marine’s professional
character that I knew personally and by third party.” He said
“,..there is no reasonable expectation that those higher in
[Petitioner’s] chain of command were not aware of [his] actions
of either planning to retire or remain on active duty...a
minimum of three to five other senior level Marines at
[Petitioner’s] command should have been well aware of his
actions and plans.” He also said that to his knowledge, the
Sergeant Major of the Marine Corps “...had no involvement in
this matter.” Petitioner also provided new evidence to prove
that on the date Colonel S--- signed the report at issue as the
third sighting officer, he was no longer the chief of staff, as
he had left that position in June 2006. In addition, Petitioner
provided documents showing that he had been approved for further

service in the Marine Corps.

h. Enclosure (5), the report of the Headquarters Marine
Corps (HQMC) Performance Evaluation Review Board (PERB) on
Petitioner’s reconsideration request, concluded that relief
should still be denied, stating “...regardless of the intent of
his action, the final result was that it had a detrimental
effect on the workplace...” and Petitioner did not submit
anything to prove otherwise. PERB further concluded that the
statements he has provided “...do not support [his] contention
that the command was kept informed as things changed.” Finally,
the PERB stated that Colonel S--- was the correct third sighting
officer, as he was the chief of staff on the ending date of the

reporting period.

i. In enclosure (6), Petitioner’s reply to the PERB report,
he maintained his position that the fitness report at issue is
unwarranted and that Colonel S--- was not authorized to act as
the third sighting officer. He also argued that Colonel s---
displayed bias against him by his “falsification” of his title.
He asked that the contested report, which represents a “stigma”
against which he must constantly defend himself, be removed in

its entirety, or that the adverse comments of Colonels G--- and
S--- be removed.
CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (5), the Board now finds an injustice
warranting partial relief, specifically, removal of the mark
from section A, item B.a; complete removal of section K (RO’s
marks and comments), together with Petitioner’s statement in
reply to the RO; and removal of the third officer sighting.
In concluding that their portions of the contested report should
be removed, the Board feels that Colonels G--- and S---
wrongfully insinuate that Petitioner had no right to consult
with his occupational field sponsor. Further, the Board finds
persuasive the statement from that sponsor, who is also the
Procurement Chief of the Marine Corps. The Board finds that
removing the RO and third sighting portions of the report
Gictates deleting the mark from section A, item 5.a and removing

Petitioner’s reply to the RO.

Finally, the Board finds that the portion of the report

submitted by the RS should stand, as it is entirely
commendatory, and Petitioner has provided nothing to show it is

in any way erroneous or unjust.

In view of the above, the Board recommends the following limited
corrective action:

RECOMMENDATION :

a. That Petitioner’s naval record be corrected by modifying
as follows the fitness report for 1 July 2005 to 24 March 2006,
dated 1 June 2006 and signed by Ms. Madelon Gott, GS11:

(1) Remove the mark from section A, item 5.a.
(2) Completely remove section K.

(3) Completely remove both Addendum Pages
(on which appear Petitioner’s statement
of 22 July 2006 in reply to the RO and
the third sighting officer comments of

25 July 2006).

b. That the magnetic tape maintained by HQMC be corrected
accordingly.

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 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.
e. That the remainder of Petitioner's request be denied.

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.

Drum! hi hirdZ tix,
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

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

review and action.
LO QoS

W. DEAN PFRYFFHRR

Reviewed and approved:

Qnad SCR:
S-Ale-06 B
Robert T. Cali

Assistant General Counsel
Manoower and Reserve Affairs)