DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Docket: 09826-10
19 April 2011

From: Chairman, Board for Correction of Naval Records

   

 

  
 

 

 

Tos Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD
Ref: (a) Title 10 U.S.C. L552
Fnel: (1) DD Form 149 w/attachments
(2) Navy Personnel Command (NPC) memo 1430 PERS 843
of 2 Nov 10
(3) Supplemental 1tr fron i «°
BCNR of 7 Jan 11
(4) United States Marine Corps Preliminary Inquiry
into Allegations of Misconduct and Dereliction
of Duty memo 5810 SJA of 27 May 09
(5) Corrected Copy of NAVPERS 1616/27 signed by the
Reporting Senior on 1 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 to show that he advanced as a
result of the FY 2010 HMCM/E-8 advancement cycle.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
Exnicios, reviewed Petitioner’s allegations of error and
injustice on 7 February 2011 and, pursuant to its
regulations, determined that the partial 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. The Board also
considered an advisory opinion from the Navy Personnel
Command (NPC) recommending that no relief be granted. See
enclosure (2).
Docket: 09826-10

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 2007 and 2008, Petitioner was assigned to the
3D Marine Aircraft Wing (3d MAW). He was scheduled to
receive a fitness report for the reporting period ending on
15 September 2008. The fitness report was not completed on
bime..

c. Petitioner was deployed with the 3D MAW FWD, in
Operation Iraqi Freedom (OIF) from July 2008 to February
2009. The FY-2010 E-8 Selection Board was scheduled to
meet in March-April 2009. In an effort to ensure the
fitness report was completed and submitted in time to be
considered by the selection board, Petitioner contacted his
Command Master Chief (CMC) on multiple occasions.

d. Petitioner claims that the CMC failed to fully
respond to his repeated requests and only offered verbal
assurances that the fitness report would be submitted by
the command directly to the selection board.

e. Under the regulations governing advancements,
which may be found in BUPERS 1430.16F, candidates are
afforded the opportunity to communicate with the selection
board, in advance, as necessary, by submitting a “selection
board package.” Petitioner submitted a “package” but did
not include a statement indicating that his evaluation was

not in his record. Petitioner alleges that his CMC a

fF had directed him not to.”

f. Petitioner’s selection board package was due to
the Naval Personnel Command by 30 January 2009. He
submitted his HMCS/E-8 selection board package on 30

 

 

1 petitioner’s Senior Enlisted Leader supports his claim by

submitting a statement which states, informed Qs
QQ chat there was no need to contact the FY 2010, E-8 Board #235

about his delinquent evaluation or to mention anything about it in his
package. CMC QM stated the evaluation would be submitted to the
Board prior to the Board convening in April 2009.” See enclosure (3).
Docket: 09826-10

January 2009, (deadline), without the required fitness
report .*

g. In February 2009, Petitioner returned from
overseas to his parent command in CONUS. Petitioner stated
that he and other members of the chief petty officer (CPO)
mess who were also missing fitness reports made additional
attempts to resolve the problem with no success.’

h. In April-May 2009, a preliminary inquiry was
conducted into allegations that the CMC had abused his
authority by intimidating subordinates and had been
derelict by failing to process multiple fitness reports.
The abuse of authority allegations were not substantiated.
However, the dereliction allegations were substantiated,
although the investigating officer “could not determine any
malicious intent.” See enclosure (4).

4. The selection board convened on 20 April 2009.
Petitioner’s fitness report had not been received by the
selection board.’ Petitioner was passed over for advancement
to HMCS/E-8.

j. In June 2009, Petitioner's fitness report from 16
June 2008 to 15 September 2008, was finally completed and
signed. See enclosure (5). Thereafter, Petitioner

submitted a request to NPC for a remedial consideration
based on the missing fitness report.

k. NPC denied the request for a remedial board
stating, essentially, that a missing fitness report is not

 

2 The fitness report was a Non-Observed and covered the period from
O08dunl6 to O8Sepl15.

3 There were allegations by the CPO mess that the CMC had failed in his
duties to timely submit fitness reports and evaluations of 59 personnel
within the command.

4 There is some evidence that the CMC forwarded a fitness report
directly to the selection board on 20 April 2010, however that report
was not accepted by the selection board or reviewed as part of their
deliberations. Moreover, the fitness report that the CMC sent was
later determined to be defective and perhaps fraudulent. Additionally,
the reporting senior denied ever signing the fitness report submitted
directly to the selection board. The issues surrounding the fitness
report that was sent directly to the selection board have not been
fully resolved. However, because that report was not seen by the
selection board, a resolution is not necessary for the consideration of
this application. See enclosure (5).

ta
Docket: 09826-10

a sufficient justification to convene a special selection
board.

1. Petitioner was selected for advancement at the
next selection board. The FY-2011 Active E-8 selection
board convened in March-April 2010. The FY 2011 selection
board considered the fitness report that was missing the
prior year. Petitioner was selected for advancement,
frocked on 16 July 2010, and was advanced on 16 January
2011.

m. In September 2010, Petitioner filed an
application with this Board requesting that his advancement
be backdated to the FY-2010 E-8 advancement cycle. He
contends that, but for the missing fitness report, he would
have been advanced by the earlier selection board.

n. By enclosure (2), NPC has recommended that no
relief be granted stating Petitioner's record was evaluated
by the correct panel in the correct competitive category
with no improperly or fraudulently submitted information.
NPC stated that his failure to submit documentation to the
selection board for advancement consideration regarding the
missing evaluation should not be a basis to backdate an
advancement.

CONCLUSION:

Upon review and consideration of all the evidence of
record, the Board concludes that Petitioner's request
warrants partial favorable action. The FY-2010 selection
board did not have the benefit of a fitness report for the
period 16 June 2008 to 15 September 2008 when it
considered, and passed over, Petitioner for advancement.
In the Board's view, Petitioner made reasonable efforts, in
the months leading up to the FY-2010 selection board, to
obtain the report. The selection board's inability to
review the report was primarily the fault of the CMC and
not that of Petitioner.

The record is clear that, one year later, the FY-2011
selection board did have the benefit of reviewing the
fitness report when it considered, and selected Petitioner
for advancement. Whether Petitioner would have been
selected by the FY-2010 selection board if it would have
had the fitness report can never be known for certain.
Docket: 09826-10

The Board understands that advancement to E-8 in the Navy
is highly competitive. There are a very limited number of
promotion vacancies. Selection boards are tasked to
determine the most qualified candidates. To do so, they
consider the whole person by assessing a candidate's
overall performance, experience, and knowledge. A wide
variety of performance factors must be considered including
technical knowledge, military proficiency, performance of
duty, conduct, education, physical fitness, time in service
time in grade, awards, decorations, and the like. One
missing fitness report may or may not make a difference.

The Board also noted that, in this case, the missing report
was non-observed. Nevertheless, there is no way to know
for certain whether Petitioner would have been selected by
the FY-2010 selection board if it would have had the
missing fitness report; therefore, the only way to
approximate whether Petitioner would have advanced from the
FY-2010 cycle is to grant him a remedial selection board.

The Board agreed with the comments contained in enclosure
(2) that a retroactive advancement is not automatically
warranted in such circumstances. However, in the Board's
view, a special selection board should be convened for the
purpose of determining whether Petitioner would likely have
advanced from the FY-2010 selection board.” And, in the
Board's view, the special selection Board should take into
account all of the factors including those that weigh in
favor of advancement, such as his overall performance,
deployment experience, and knowledge as well as factors
that weigh against selection such as keen competition, the
competitive nature of the E-8 advancements, the “non-
observed” nature of the report, and the limited number of
promotion vacancies that were available. Accordingly, the
Board concludes that Petitioner should be afforded remedial
consideration for advancement to HMCS/E-8 for the FY-10
promotion cycle.

 

5 The Board understands that their determination necessarily places a
weighty administrative burden upon the NPC to assemble Petitioner's
record, convene a qualified remedial selection board, and make an
honest and impartial evaluation of whether Petitioner would have been
advanced if his full record had been before the FY-2010 selection
board. However, in the Board’s view, the burden is outweighed by the
injustice that has been suffered by Petitioner in this case.
Docket: 09826-10

RECOMMENDATION :

 

That Petitioner’s naval record be corrected, where
appropriate, to show that:

a. Petitioner shall receive remedial consideration
for promotion to HMCS/E-8 from the fiscal year 2010
Selection Board.

b. Such remedial consideration shall include
consideration of the fitness report covering the period
16 June 2008 to 15 September 2008, signed by the Reporting
Senior dated 1 June 2009.

c. That a copy of the Report of Proceedings, be filed
in the Petitioner’s naval record.

4, Pursuant to Section 6(c) of the revised Procedures of
the Board for Correction of Naval Records (32 Code of
Federal Regulations, Section 723.6(c)) it is certified that
quorum was present at the Board’s review and deliberations,
and that the foregoing is a true and complete record ef the
Board's proceedings in the above entitled matter.

(bb fH

 

ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for

your review and action.

Usa

W. DEAN PF
Executive rector

OAL lite 6 / Y / [i

ROBERT L. WOODS

Assistant General Counsel
(Manpower anc Reserve Affairs)
1000 Navy Pentagon, Rm 40548
Washington, DC 20350-1000