DEPARTMENT OF THE NAVY .

BOARD FOR CORRECTION GF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 .
JSR

Docket No: 5169-03
4 June 2009

 

From: Chairman, Board for Correction of Naval Records

 

To: Secretary of the Navy
Subj: = ae
REVIEW OF NAVAL RECORD
Ref: (a) Title 10 U.S.C. 1552
Encl: DD Form 149 dtd 6 Jan 09 w/attachments

)
) HOMC MMER/PERB memo dtd 7 May 09

) Subject’s e-mail dtd 1 Jun 09 less attachments
) Subject’s naval record

1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that her naval record be corrected by removing the
fitness report for 10 October 2007 to 30 March 2008, a copy of
which is at Tab A.

2. The Board, consisting of Mses. Coibert, LeBlanc and Prevatt,
reviewed Petitioner’s allegations of error and injustice on 4
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, naval Fecords, and
applicable statutes, regulations and policies.

3. The Board, having reviewed alli 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 which were available under existing law

and regulations within the Department of “the Navy.

 

b. Enclosure {1) was filed in a timely manner.

c. On 14 March 2008, Petitioner had an exchange with his
xeporting senior (RS), during which Petitioner threatened to
file a request mast against him. On the same date, Petitioner
did file a request mast against him, complaining of his micro-
Management. On 16 March 2008, an investigation of the incident -
of 14 March 2008 was initiated by Petitioner’s reviewing officer
(RO). On 28 March 2008, the investigation was completed. On 30
March 2008, Petitioner was relieved of his duties as a platoon
commander. On 17 July 2008, the RS submitted the contested
adverse fitness report, documenting Petitioner's relief for
having been insolent and unprofessional. This was a combat
fitness report for active duty in Iraq. Both the RO and the
third sighting officer concurred with the report.

d. Petitioner alleges that the report at issue was in
reprisal for his request mast. He also feels the officer with
whom he had the exchange in question could not have evaluated
him objectively and, therefore, should not have been permitted
to act as his RS, Finally, he contends that officer did not
fulfill his responsibilities as an RS and a supervisor.

e. The RO acknowledges, in paragraph 9 of his addendum
page, that the timing of Petitioner’s request mast and that of
the RS‘s allegations against him “may lead some to surmise that
the allegations are a reprisal against [Petitioner] for
requesting mast.” However, he concluded “The evidence presented
in this case paints a clear picture of insolent and rude
behavior on the part of [Petitioner].” In paragraph 11, he
states that the RS, “over the course of the past (4) weeks, has
allowed [Petitioner] to act in an increasingly hostile and
disrespectful manner to a superior officer.” and that “He has
not corrected in a forceful, directive manner the deficiencies
in behavior that [Petitioner] has exhibited in the past.” The
RO notes that the RS has been “a staunch supporter of
[Petitioner], stating in his last counseling that [Petitioner]
“is ‘an exceptional officer.‘" The RO further notes that the RO
“allowed a dispute between himself and [Petitioner] to be
witnessed by the junior enlisted Marines on several occasions
without correction.”

f£. The third sighting officer’s addendum page points out
that the investigation found no substantiation for most of the
allegations against Petitioner “and in fact chastised both he
and his reporting senior for their unprofessional conduct.”

g. Petitioner provided supporting statements from five
Marines, a lieutenant colonel (unsigned), two majors, and two
sergeants.
h. Enclosure (2), the report of the Headquarters Marine
Corps (HQMC) Performance Evaluation Review Board (PERB) in
Petitioner’s case, concluded that his request should be denied.
The PERB was not persuaded that the RS had failed to fulfill his
responsibilities or that he had acted in reprisal against
Petitioner. The PERB found the third sighting officer's
adjudication an “accurate and appropriate summary of the case.”

i. In enclosure (3), Petitioner objects that the.
investigation was conducted without transparency; that he was
not permitted to make a statement, upon seeking legal advice, so
the investigation was done “without [his] side of the story”;
that he was never given a copy of the investigation; and that he
was not informed on the day of his relief what he had done to
warrant it. He says “The RS was discovered to have made false
and contradictory statements regarding the allegations against

{him] .”
CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (2), the Board finds an injustice
warranting removal of the contested fitness report. While the
Board does not excuse Petitioner’s behavior toward the RS, the
Board considers the report at issue to represent an overreaction
to it. The Board particularly notes the evidence that the RS
effectively condoned such behavior in the past, and that the
investigation criticized both Petitioner and the RS. Finally,
the Board agrees with Petitioner that under the circumstances,
the officer who submitted the contested report probably should
not have been permitted to act as Petitioner’s RS. In view of
the above, the Board recommends the following corrective action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected by removing
the following fitness report and related material:

Period of Report
From To
10 Oct 07 30 Mar 08

‘Date of Report
17 Jul 08

 

b. That there be inserted in his 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.

ec. That the magnetic tape maintained by HOMC be corrected
accordingly.

ad. 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 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,

Dove a J bathe
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder _ Acting Recorder

5. The foregoing report of the Board is submitted for your
review and action.

W. DEAN PFE Fi

Reviewed and approved:

Qasx Ss C&.

A -A- OF