DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100
HD:hda
Docket No. 01196-0909
‘7 May 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub}: seni
REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 3 Feb 09 w/attachments
(2) PERS-311 memo dtd 24 Feb 09
(3) Subject's ltr dtd 2 Apr 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 16 to 24 March 2008, a copy of
which is at Tab A, leaving in her record the "special" report
for 25 March to 23 May 2008, a copy of which is at Tab B.
2. The Board, consisting of Ms. Ballinger and Messrs. Mann and
Trant, reviewed Petitioner's allegations of error and injustice
on 7 May 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. Enclosure (1) was filed in a timely manner.
c. Petitioner received nonjudicial punishment (NJP) on
21 March 2008. The contested "special" report for 16 to
24 March 2008 was submitted, by her department head, to report
the NUP. By. marking block 45 ("Promotion Recommendation -
Individual") "Significant Problems," he indicated he did not
recommend her for advancement. The applicable performance
evaluation directive, Bureau of Naval Personnel Instruction
(BUPERSINST) 1610.10A, permitted him to submit an evaluation
report withdrawing Petitioner's recommendation for advancement,
on the condition that the commanding officer (CO) review it.
Since the advancement manual, BUPERSINST 1430.16F, provided that
withdrawal of recommendation for advancement required an
evaluation report signed by the CO or officer in charge,
Petitioner was permitted to compete for advancement, and her
advancement was authorized. To deny Petitioner advancement, the
CO submitted the uncontested "special" evaluation report for
25 March to 23 May 2008, which also marked block 45 "Significant
Problems," and stated in block 43 ("Comments on Performance")
the report was "submitted to withdraw [Petitioner's] advancement
recommendation to Petty Officer First Class due to Commanding
Officer's Non-dJudicial punishment held on O8MAR21."
d. In support of Petitioner's application at enclosure (1),
she provided a letter dated 23 January 2009 from the CO, stating
it was "not [his] intention to submit two reports of Significant
Problems as the two reports will both count toward the
evaluation factor in her [advancement] exam final multiple." He
further stated "the second evaluation was submitted only because
of the conflicting guidance" in BUPERSINST 1610.10A and
1430.16F.
e. In enclosure (2), the Navy Personnel Command (NPC)
office with cognizance over the subject matter of Petitioner's
case commented to the effect her request should be denied, as
both "special" reports are valid under BUPERSINST 1610.10A.
This advisory opinion noted that the uncontested report did not
mention the punishment awarded at the NUP.
f. In enclosure (3), Petitioner asserted that the advisory
opinion at enclosure (2) acknowledged the uncontested report for
25 March to 23 May 2008 had been submitted incorrectly, as it
did not mention the punishment awarded at the NUP. She further
contended that when the command realized the CO had to sign the
evaluation withdrawing the recommendation for advancement, an
administrative change to the contested report should have been
done, rather than a second report.
CONCLUSION: -
Upon review and consideration of all the evidence of record, and
notwithstanding enclosure’ (2), the Board finds an error and
injustice warranting relief, specifically, removal of the
contested "special" report and modification of the uncontested
"special" report by changing the beginning date from 25 to
16 March 2008, the beginning date of the report to be removed.
In this connection, the Board finds that had Petitioner's
command understood, from the outset, that making Petitioner
ineligible for advancement required submission of a "Significant
Problems" report signed by the CO, only one such report, signed
by the CO, would have been submitted. Accordingly, the Board
recommends the following corrective action:
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
the following enlisted performance evaluation report and related
material:
Period of Report
Date of Report Reporting Senior From To
23Mar08 16Mar08s 24Maro08
b. That appropriate corrections be made to the magnetic
tape or microfilm maintained by NPC.
c. That Petitioner's record be corrected further by
modifying as follows the enlisted performance evaluation report
for 25 March to 23 May 2008, dated 16 July 2008 and signed by
Captain H. A. Shelanski, USN:
Block 14 ("Period of Report"): Change "From" date from
"O8MARZ5" to "O8MAR16."
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 in a
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.
eee ji SD ge *
LO od EPS
ve
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
\y
WwW.
DEAN
Reviewed and approved:
Qasax S. C&s
Te -\B- OF
Robert T. Calli
Assistant Generai Counsel
Manpower and Reserve Affairs)
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