DEPARTMENT OF THE NAVY

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

 

HD: hd

Docket No. 00148-09

25 June 2009

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

   

Subj: sii ie
, REVIEW OF NAVAL RECORD

Ref: {a) 10 U.S.C, 1552

Encl: (1) DD Form 149 dtd 9 Nov 08 w/attachments

(2) PERS-311 memo dtd 3 Feb 09

(3) Subject's ltr dtd 10 Mar 09 w/endorsement
and attachments

(4) PERS-811 memo dtd 6 Apr 09

(5) Subject's memo dtd 15 Jun 09 w/endorsement
and attachments ,

(6) Memo for Record dtd 3 Jun 09

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 "special" enlisted
performance evaluation report for 27 August 2007 to 29 February
2008 (copy at Tab A), and that the beginning date of the report
for 1 March to 15 June 2008 (copy at Tab B) be changed from

1 March 2008 to 27 August 2007, to cover the period of the
report to be removed. Petitioner further requested that the
report for 16 June 2006 to 15 June 2007 (extended to 26 August
2007) (copy at Tab C) be filed in his record. This report has
been filed. Finally, he requested that his performance mark
average (PMA) and final multiple for the September 2008 (Cycle
200) examination for advancement to MM2 (pay grade E-5) be
recalculated accordingly and, if it is high enough, that he be
retroactively advanced to MM2. ©

2. The Board, consisting of Ms. LeBlanc and Messrs. Blanchard
and J. Hicks, reviewed Petitioner's allegations of error and
injustice on 25 June 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, 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 in a timely manner.

c. The USS STENNIS temporarily lost Petitioner's report for
16 June 2006 to 15 June 2007 (extended to 26 August 2007), in
which his promotion recommendation (block 45) was "Must Promote"
(3.8 for PMA computation purposes). His subsequent station,
Naval Station Everett, Washington, submitted the contested
"special" report for 27 August 2007 to 29 February 2008, block
43 (“Comments on Performance”) of which stated the report was
submitted for the purpose of enabling him to establish a PMA (so
he could compete in the September 2008 (Cycle 200) examination
for advancement). In this report, block 45 was marked
"Promotable" (3.6 for PMA).

d. In enclosure (2}, PERS-311, the Navy Personnel Command
(NPC) performance evaluation office, commented to the effect
Petitioner's performance record should remain unchanged, since
the contested "special" report was properly submitted to
establish a PMA.

e. Enclosure (3) is Petitioner's reply to enclosure (2),
maintaining that the contested report should be removed, as it
would not have been submitted, had the STENNIS report not been
temporarily lost.

f. In enclosure (4), PERS-811, the NPC enlisted
advancements office, noted that including the STENNIS report in
Petitioner's PMA computation would not have changed the result,
as that report was 3.8, which was Petitioner's PMA (his PMA was
computed using the average of the contested 3.6 report and the
report for 1 March to 15 June 2008 from Naval Station Everett
("Early Promote" (4.0 for PMA)).

g. Enclosure (5) is Petitioner's reply to enclosure (4),
noting that if the 3.8 STENNIS report is included in the PMA
computation and the contested 3.6 report is excluded, and the
4.0 report for 1 March to 15 June 2008 is again included, his
PMA would have been 3.9, which would have raised his final
multiple enough for advancement.

h. Enclosure (6) reflects the Naval Education and Training,
Professional Development and Technology Center, Pensacola
advised that if Petitioner's PMA had been 3.9 instead of 3.8, he
would have been advanced to MM2 with a time in rate date of .
1 January 2009 and effective date of 16 January 2009.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding the recommendation in enclosure (2), the Board
finds the existence of an error and injustice warranting partial
relief, specifically, removing the contested "special" report.

The Board does concur with enclosure (2) that the "special"
report was properly submitted, given that the "STENNIS" report
had not yet been located. However, the Board also agrees with
Petitioner's point that this report would not have been
submitted, had the "STENNIS" report, which is now on file in his
record, not been lost.

The Board finds that Petitioner's request to change the
beginning date of the report for 1 March to 15 June 2008 should
be denied. The Board is unable to find he still would have been
marked “Early Promote," had Naval Station Everett given him one
report for the period starting 27 August 2007 and ending 15 June
2008. In this regard, the Board particularly notes that the
STENNIS report marked him "Must Promote," and the contested
"special" report marked him "Promotable."

The Board is likewise unable to find Petitioner's PMA would have
been higher, had he not received the "special" report. In this
connection, while the Board recognizes that the 3.8 STENNIS
report should have been included in the computation, the report
for 27 August 2007 to 15 June 2008 that also would have been
included, had the "special" report not been submitted, would not
necessarily have been "Early Promote," as discussed above. If
this report would have been marked anywhere below "Early
Promote," Petitioner's PMA of 3.8 would not have been higher.

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

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

Period of Report
Date of Report Reporting Senior ' From ' To

 

25Maro08 27Augo7 29Feb0os

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 such
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 appropriate corrections be made to the magnetic
tape or microfilm maintained by NPC.

d. 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.

e. 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.

f. 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.

Iona TRA of’ (Ord

ROBERT D. 4S5ALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your

review and action,

Reviewed and approved:

Rad S. GO.

A-10 - OA