DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JSR
Docket No: 11686-09
7 January 2010
From: Chairman, Board for Correction of Naval Records
To; Secretary of the Navy
Subj:
REVIEW: OF NAVAL RECORD
Ref: (a) Title 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 10 Apr 09 w/attachments
(2) HOMC MMER/PERB memo dtd 5 Nov 09>
(3) 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 his naval record be corrected by removing the
fitness reports for 21 October 2005 to 10 January 2006 and 11
January to 23 May 2006, copies of which are at Tabs A and B,
respectively.
2. The Board, consisting of Ms. LeBlanc and Messrs. Grover and
McBride, reviewed Petitioner's allegations of error and
injustice on 7 January 2010, 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 which were available under existing law
-and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
-c. Both contested fitness reports are adverse, and both had
the same reporting senior (RS), reviewing officer (RO) and third |
Sighting officer. The report ending 10 January 2006 documents
Petitioner’s nonjudicial punishment (NJP) of 10 January 2006 for
disobeying an order to perform his duties as a recruiter, and
the report ending 23 May 2006 documents his relief for cause
from recruiting duty. Section I (RS “Directed and Additional
Comments”) of the report ending 10 January 2006 says that
Petitioner “literally arrived on recruiting duty and quit within
one month.” and that “He gave up on himself when the challenges
of recruiting duty came to light.” Section K.4 (RO comments)
says that despite efforts to motivate him, he “chose not to
respond” and that he “is a disgrace.” Section I of the report
ending 23 May 2006 says he “Does not display the will, desire
nor drive expected of a SNCO [staff noncommissioned officer].”
d. In enclosure (1), Petitioner provided documentation
showing that he was diagnosed with major depressive disorder and
anxiety disorder on 27 January 2006 and consequently placed on
limited duty from 27 January to 27 March 2006. His rebuttal of
20 February 2006 in response to the report ending 10 January
2006 states that before the NUP, he “had begun thoughts of
Suicide because of family and work stressors”; that in early
January 2006, he was taken by ambulance to the emergency room
with a “major anxiety attack/depression” and treated with
medication; and that “there has always been an underlying deep
depression/anxiety prior to coming on Recruiting [sic].” In
section K.4 of the same report, the RO replies as follows:
His comments regarding anxiety attacks, depression and
medication are correct, but again, only serve as examples
of his adverse performance overall. A staff noncommissioned
officer who cannot handle, in fact thrive, in a demanding
environment should not be a SNCO, should not be promoted,
reenlisted or allowed anywhere near junior Marines.
e. 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.
Regarding the matter of Petitioner’s medical issues, the PERB
merely stated that “The command recognized the petitioner’s
medical issues that interfered with his performance of duty, and
maintained the position that the petitioner ‘quit’ and refused
to put forth the effort to be successful at recruiting.” The
PERB further stated that Petitioner “does not provide any
factual evidence to disprove the recorded adversities.”
CONCLUSION:
Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (2), the Board finds an injustice
warranting removal of both contested fitness reports. The Board
finds both reports were unduly harsh and insufficiently
sensitive to the adverse effect Petitioner’s diagnosed medical
problems had on his ability to function as a recruiter.
Specifically regarding the report ending 23 May 2006, the Board
does not disagree with his having been relieved of recruiter
duty, but does take issue with relieving him for cause, a highly
stigmatizing action. 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 reports and related material:
Periods of Reports
Dates of Reports Reporting Senior | From To
15 Feb 06g MMMM 21 Oct 05 10 Jan 06
2 Feb 07 “ ll Jan 06 23 May 06
b. That there be inserted in his naval record ONE
memorandum in place of both removed reports, containing
appropriate identifying data; that such memorandum state that
the portion of Petitioner’s fitness report record for 21 October
2005 to 23 May 2006 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 removed material.
c. That the magnetic tape maintained by HOMC be corrected
accordingly.
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 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.
ROBERT D. 4SALMAN JONATHAN S. RUSKIN
Recorder — Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
Reviewed and approved: |
Chat ook Po a
5 Assistant General Counsel
4@npewer and Reserve Affaits)
NAVY | BCNR | CY2008 | 03937-08
g. With his reconsideration request at enclosure (3), Petitioner provided a statement dated 27 March 2008 (document 1 of 14) from Master Gunnery Sergeant C---, the 3044 MOS Occupational Field Sponsor/Procurement Chief of the Marine Corps. In enclosure (6), Petitioner’s reply to the PERB report, he maintained his position that the fitness report at issue is unwarranted and that Colonel S--- was not authorized to act as the third sighting officer. Further, the Board finds persuasive the...
NAVY | BCNR | CY2013 | NR9172 13
Petitioner provided a supporting statement from Sergeant S---, affirming that since he had reason to believe his girlfriend, whom he thought was pregnant with his child, was receiving threats from her ex-boyfriend who still had a key to her house, Petitioner could not have stopped him from driving himself without a “physical altercation.” Sergeant S---‘s statement further reflects that “[Petitioner’s] actions were that of a concerned Marine and were within [sic] good intent” and that “My...
NAVY | BCNR | CY2009 | 05169-09
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. 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. e....
NAVY | BCNR | CY2009 | 05012-09
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 his naval record be corrected by modifying the fitness report for 1 July to 24 October 2006 (copy at Tab A}, in accordance with the letters at enclosure (1) from the reporting senior {RS) and reviewing officer (RO), undated and dated 8 January 2009, respectively, by raising the marks in sections D.1 (“Performance”),...
NAVY | BCNR | CY2007 | 09077-07
By letter dated 7 June 2005, the Commandant of the Marine Corps (CMC) recommended to the Secretary of the Navy (SECNAV) that Petitioner’s name be withheld from the FY 2006 Colonel Promotion List. This advisory stated he was withheld from the FY 2006 promotion list because of the adverse fitness report (which had not yet been removed), and that without the report, his record is “obviously competitive.” Petitioner was not considered by the FY 2007 Colonel Selection Board. p. Enclosure (15)...
NAVY | BCNR | CY2009 | 03521-09
However, in only 60 days since the end of his last reporting period, I cannot say that he has moved up in his peer ranking.” A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 June 2009. In addition, the Board considered the report of the Headquarters Marine Corps Performance Evaluation Review Board (PERB) dated 1 April 2009, a copy of which is attached. Removal of the fitness reports for the periods 19990101...
NAVY | BCNR | CY2013 | NR9184 13
DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 58. 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 the applicable naval record be corrected by modifying the fitness report for 1 July 2012 to 31 March 2013 (copy at Tab A), in accordance with the reviewing officer (RO)’s letter of 22 May 2013 (at enclosure (1)), by raising the mark in section K.3...
NAVY | BCNR | CY2012 | 03443 12
DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S,. 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 completely removing the fitness report for 18 June 2007 to 31 May 2008 (copy at Tab A), modified in his previous case by the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) by removal of section K...
NAVY | BCNR | CY2010 | 09822-10
The PERB took this action because Petitioner “submitted compelling evidence to indicate that the RO’s evaluation may have been biased and possibly influenced by factors other than the petitioner’s performance.” The PERB denied Petitioner’s request to remove the entire report, because it found the RS had provided him performance counseling, the RS's marks and comments did not indicate any bias or unfairness, and Petitioner had “failed to sufficiently establish his claim that the RS’ part of...
NAVY | BCNR | CY2009 | 12759-09
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 the applicable naval record be corrected by . d. Petitioner contends that the contested fitness report violates the applicable fitness report order, Marine Corps Order P1610.7F, in that it reflects “faint praise”; the marks reflect marginal performance without any corroboration in the narrative; the last two...