DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100. HD:hd

Docket No. 08049-08
30 October 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. You requested removing the
fitness report for 16 September 2007 to 12 May 2008.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 30 October 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 iia
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 (PERS -
311) dated 30 September 2008, with e-mail regarding PERS-311
contact with the reporting senior, a copy of which is attached.
The Board also considered your letter dated 27 October 2008.

Bfter 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,
except the recommendation to remove reference to the revocation
of your end of tour award. The Board considered Bureau of Naval
Personnel Instruction 1610.10A, enclosure (2), paragraph 13-131
to be inapplicable, as the contested fitness report does not
indicate the award was only recommended when it was revoked.
Your unsubstantiated assertion that you were exonerated of all

aw
charges concerning a civil matter did not persuade the Board
that you did not engage in "poor personal behavior," the reason
given for the revocation of your award and your chief warrant
officer application. Finally, the Board noted that you have
made a statement for the record in reply to the fitness report
at issue. In view of the above, 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 PERI

Executive Dir

\

Enclosure
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE

MILLINGTON TN 38055-0000
1610

PERS-311
30 September 2008

 

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

Via: PERS/BCNR Coordinator (PERS-31C)

Su)

 

Ref: (a) BUPERSINST 1610.10A (EVALMAN)
Encl: (1) BCNR File 08049-08 wo/Service record

1. Enclosure (1) is returned. The member does not make a specific request for the removal or
correction of his fitness report for the period of 16 September 2007 to 12 May 2008.

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.
The fitness report was examined for accuracy and compliance with reference (a) and found not
signed by the member; however, the report was accurately annotated “Certified Copy Provided”
in the member’s signature block by the reporting senior and placed in the member’s OMPF. The
member’s statement and the reporting senior’s endorsement to the fitness report are present in the
member’s file.

b. The report in question is a Detachment of Individual/Regular report ending 12 May 2008.
The member alleges the report was written as punishment for a civil matter that he was
exonerated of all charges. Additionally, the fitness report should not have mentioned an award
that he did not receive.

c. The fitness report is technically a valid report.

d. At the time of the examination, the report was processed without interpreting the comments
in block 41, “Comments on Performance”, in violation of reference (a). The report was accepted
and sent to the member’s OMPF. Per reference (a), Chapter 13, page 13-9, subparagraph 13-13
(i), the reporting senior should not have commented on an award not received by the member.
The reporting senior commented in block 41, Comments on Performance: “Displayed poor
judgment while off-duty that was inconsistent with Navy core values and the rank of a Senior
Chief Petty officer in the U.S. Navy. As a result his Chief Warrant officer application and his
end of tour award were both revoked due to his poor personal behavior during the latter part of
this evaluation period.” Per reference (a), Chapter 13, page 13-3, subparagraph 13-8 and page
13-7, subparagraph 13-12 (a), the fitness report could also have been considered an adverse
report and should have been referred to the member for signature.

e. Pers-311 has contac aii iNmbbhee oardin g the fitness reports in cuesion t to request
he reconsider and revise the report in member’s file. Additionally, Qa Rei

interpretation of reference (a) is that the report should not be considered adverse. He stated the
comments were used to justify the decline in performance traits and promotion recommendation.
The overall purpose and apphcabilty, of any instruction are foundational elements of the
interpretation of its contents has RI izionsidered the report adverse he should have
referred the report to the member for statement, to notify him that his performance report
contains an adverse matter. Per Reference, (a) member’s signature is required on all adverse
fitness reports unless other wise specified in Chapter 14. 9a WON currently on
temporary duty assignment and said he would supplement the fitness report to remove the
comments on the award not received by the member.

 
 

 

 

 

f, As PERS-311 cannot interpret the reporting senior’s intentions in preparing the fitness
report on the member. We recommend in block 41, Comments on Performance, of “As a result
his Chief Warrant officer application and his end of tour award were both revoked due to his
poor personal behavior during the latter part of this evaluation period.” be amended to remove
“and his end of tour award were both”.

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 partially prove the report to be unjust or in error.

3, We recommend the member's record remain unchanged except as stated above.

FG over

y Direction