DEPARTMENT OF THE NAVY

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

 

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Docket No. 02370-09
9 October 2009

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

     

 
 

Subj: Sam _
REVIEW OF NAVAL RECORD
Ref: {a} 10 U.S.C. 1552
Enel: DD Form 149 dtd 2 Mar 09 w/attachments

OPNAV'N135 ltr dtd 15 May 09 w/enclosures
CNO N1i34 memo dtd 13 Jul 09

PERS-32 memo dtd 16 Jul 09

PERS-80 memo dtd 23 Jul 09

Counsel ltr dtd 19 Sep 09

A oF Wh bh

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 February to 17 August 2006 (copy at Tab A) and modifying the
report for 1 February 2007 to 31 January 2008 (copy at Tab B) by
changing the body composition entry in block 20 ("Physical
Readiness") from "NS" (not within standards) to "MW" (medically
waived), removing the marks in blocks 35 ("Military Bearing"),
42 ("Promotion Recommendation - Individual") and 43 ("Promotion
Recommendation - Summary") and removing from block 41 ("Comments
on Performance") any related verbiage. He also requested, in
the event of his failure of selection to lieutenant commander,
consideration by a special selection board (SSB). He has not
failed of selection to lieutenant commander, so the Board did
‘not consider this request.

2. The Board, consisting of Messrs. Dunn, Grover and Sproul,
reviewed Petitioner's allegations of error and injustice on

8 October 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, 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. In enclosure (2), OPNAV N135, the Chief of Naval
Operations (CNO) office with cognizance over physical readiness,
commented to the effect that the body composition entry in block
20 of the fitness report. for 1 February 2007 to 31 January 2008
should be corrected, as Petitioner requested, from "NS" to "MW."

c. In enclosure (3), CNO Ni34, the CNO office with
cognizance over equal opportunity matters, commented to the
effect Petitioner has not. demonstrated that the contested
fitness report for 1 February 2006 to 17 August 2006 was the
product of religious discrimination.

d. In enclosure (4), PERS-32, the Navy Personnel Command
(NPC) office with cognizance over performance evaluations,
commented to the effect that the report for 1 February 2007 to
31 January 2008 should be modified by changing the body
composition entry in block 20 from "NS" to "MW" and removing.
from block 41 comments on Petitioner's having failed the body
composition assessment. (BCA). PERS-32 stated they had been
unable to contact the reporting senior as to whether the marks
in blocks 35, 42-and 43 were based on Petitioner's BCA failure.

e. In enclosure (5), PERS-80, the NPC office with
cognizance over enlisted advancements, recommended Petitioner be
granted an SSB if this Board approves his request to correct his
fitness report record. He has not failed of selection, so he is
ineligible for SSB consideration.

£f. In enclosure {6}, Petitioner's counsel insisted
Petitioner had been the victim of religious discrimination.

CONCLUSTON :

Upon review and consideration of all the evidence of record, and
especially in light of enclosures (2) through (4), the Board
finds an error and injustice warranting the following limited
corrective action:
RECOMMENDATION:

a. That Petitioner's naval record be corrected by modifying
as follows the fit port for 1 February 2007 to 31 January
2008, signed bya ¢¥ USMC and dated.

13 February 2008:

  
  

(1) Block 20: Change body composition entry from "NS" to
"MW . TF

(2} Block 35: Remove mark of "2.0."

(3) Block 41: Remove "35. Military Bearing: [Petitioner]
did not pass the Body Composition Analysis with body
fat percentages of 24% and 28%."

b.. That there be inserted in his record a memorandum in |.
place of the mark to be removed containing appropriate.
identifying data; that the memorandum state that the mark in
block 35 of the fitness report for 1 February 2007 to 31 January
2008 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 mark.

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 or material 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 in a
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.

Pontipan/! L (Crwtliny

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section

é(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.

Re SA a
_ RW, DEAN PFEIFFER
Executive Director