DEPARTMENT OF THE NAVY

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

 

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Docket No. 08771-08
9 February 2009

From: Chairman, Board for Correction of Naval Records

    

To: Secretary of the Navy
Sub): Re Aer ee
REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: DD Form 149 dtd 8 Aug 08 w/attachments

PERS-834 memo dtd 24 Nov 08

PERS-311 memo dtd 12 Dec 08

Subject's ltr dtd 20 Jan 09 w/enclosure
Subject's naval record

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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 2007 to 16 May 2008 and all related material, a copy
of which is at Tab A.

2. The Board, consisting of Messrs. Grover, Lippolis and
McBride, reviewed Petitioner's allegations of error and
injustice on 5 February 2009, 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. Petitioner contends the contested fitness report should
be removed because block 41 ("Comments on Performance") contains
an improper reference to a pending detachment for cause (DFC),
and it improperly refers to a charge that did not result in
disciplinary action. He also alleges, contrary to block 30 of
the report, which reflects he had mid-term counseling on 15 May
2008, that he actually received no mid-term counseling.

c. In correspondence attached as enclosure (2), the Navy
Personnel Command (NPC) office having cognizance over officer
performance commented to the effect that the block 41 comment
Ue**DWAITING FINAL AUTHORIZATION TO DETACH FOR CAUSE.***" should
be removed, but that the report at issue, as so modified, should
stand.

d. In enclosure (3), the NPC office with cognizance over
performance evaluations also recommended removing the reference
to a pending DFC, but added a recommendation to remove from
block 41 "CHARGED WITH CONDUCT UNBECOMING OF AN OFFICER AND A
GENTLEMAN. MEMBER DECLINED CO’'S [commanding officer’s] NJP
[nonjudicial punishment].” The basis for the latter
recommendation was the determination that this was an improper
reference to an ongoing investigation and pending charges not
yet concluded. Paragraph 2.e of enclosure (3) noted that mid-
term counseling may be provided in an earlier or later month, if
that would be more appropriate, but may not be omitted; it
stated that 23 May 2008 was the normal mid-point of the periodic
cycle; and it stated that "the date the member signed the report
[23 May 2008] is [Petitioner's] counseling date."

e. In enclosure (4), Petitioner submitted the report of his
board of inquiry, which found he did not commit conduct
unbecoming of an officer and a gentleman.

f. Bureau of Naval Personnel Instruction 1610.10A,
enclosure (2), paragraph 19-5, says mid-term "Counseling may
actually he provided in an earlier or later month if that is
more appropriate, but may not be omitted or unduly delayed."

CONCLUSION:

Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosures (2) and (3),
the Board finds an error warranting partial relief,

specifically, removing from block 41 "***AWAITING FINAL
AUTHORIZATION TO DETACH FOR CAUSE.***" The Board agrees with
enclosure (2) in concluding there was no ongoing investigation
and no charges pending against Petitioner when the contested
fitness report was submitted, so it does not accept the
recommendation, in enclosure (3), to remove additional verblage.
The Board finds it was permissible to refer to a charge that did
not result in disciplinary action, when Petitioner had declined
NIP for that charge, and the reporting senior was satisfied that
he had committed the offense charged.

The Board notes that paragraph 2.e of enclosure (3) was
incorrect in stating the normal mid-point of Petitioner's
periodic cycle was 23 May 2008, as the actual mid-point for
periodic reports starting on 1 November 2007 is 30 April 2008.
The Board finds that 15 May 2008, the date on which the report
at issue states mid-term counseling was conducted, was only two
weeks after the normal mid-term counseling month, and therefore
Petitioner's mid-term counseling was not unduly delayed. The
Board further disagrees with the statement, in the same
paragraph of enclosure (3), that the date Petitioner signed the
report was his counseling date. The Board is unable to find
Petitioner did not receive mid-term counseling on 15 May 2008,
as the report in question states he did, noting that counseling
takes many forms, so the recipient may not recognize it as such
when it is provided. In any event, the Board finds that even if
Petitioner were correct that mid-term counseling was not
conducted, this would not justify removing the contested report.

Finally, the board of inquiry finding that Petitioner did not
commit conduct unbecoming of an officer and a gentleman does not
persuade the Board that the reporting senior was incorrect in
citing that misconduct and marking Petitioner down accordingly.

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

RECOMMENDATION :

a. That Petitioner's fitness report for 1 November 2007 to
16 May 2008, dated 15 May 2008 and signed by Commander iii
aa >: modified by deleting, from the beginning of the
block 41 narrative, the following: WkKKAWAITING FINAL
AUTHORIZATION TO DETACH FOR CAUSE.***"

b. 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.

c. 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.

d. 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.

RA TRI do . Lipton
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6 (e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.

    

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