DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON OG 20370-5100

 

HD: hd
Docket No. 05164-11
5 September 2011

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

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Sub 3 : QE eee eee
REVIEW OF NAVAL: RECORD

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 30 Apr 11 w/attachments
(2) PERS-32 memo dtd 7 Jun 11 w/attachment
(3) Counsel’s ltr dtd 19 Aug 11 w/attachments

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 August 2007 to 30 April
2008 and related correspondence (copy at Tab A).

2. The Board, consisting of Messrs. Gorenflo, Grover and Spooner,
reviewed Petitioner's’ allegations of error and injustice on 1
September 2011, 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. Enclosure (1) was filed in a timely manner.

c. While Petitioner was assigned to the U. S. Defense Attaché
Office, Lisbon, Portugal, the same Air Force reporting senior, a
colonel, gave him two fitness reports, the uncontested commendatory
report for 8 April 2006 to 31 July 2007 (copy at Tab B) and the
contested adverse report, submitted on the occasion of Petitioner’s
detachment. The uncontested report assigned Petitioner straight
marks of “5.0” (highest of five possible marks) and in block 42
(“Promotion Recommendation - Individual”) marked him “Early Promote”
(highest of five possible marks). The block 41 narrative was fully
favorable. The contested report assigned Petitioner straight marks
of "3.0" (mid-range) and in block 42 marked him “Must Promote” (second
best). The block 41 narrative stated Petitioner was “Returned to
Service due to unsuitability for attaché assignment and failure to
meet minimum performance expectations.” Concerning block 33
(“Professional Expertise”), it said “Has difficulty adapting to his
main joint DIA. [Defense Intelligence Agency] mission and attaché
operational activity. Has not developed the operational mindset
that allows him to develop and exploit the access he needs to fully
conduct attaché operations." Regarding block 34 (“Command or
Organizational Climate/Equal Opportunity”), it said “In private has
made comments about having problems communicating with Americans of
another cultural background.” About blocks 35 (“Military
Bearing/Character”) and 36 (“Teamwork”), it said “Often displays a
penchant to challenge peers and superiors whether military or
civilian. Resorts easily to acrimonious discussion. Can be an
excellent team-player when he agrees with team goals; when he does

not he can be very difficult in accepting direction.” Finally, with
respect to blocks 37 (“Mission Accomplishment and Initiative”) and
38 (“Leadership”), it stated the following:

Capable of great work though he is not a good planner
and often fails to prioritize according to direction.
Often hard to get him to focus on team goals. Displays
an impulsive, strong personality that at times overcomes
good judgment. Example, feeling wronged, he jumped two
levels of DIA chain of command to call a very senior
officer over a finance issue that he had not given
intermediate supervisors a chance to pursue.

In block 46, Petitioner indicated that he intended to submit a
statement, but no statement is in the record.

d. On 19 November 2007, the reporting senior requested
Petitioner’s detachment for cause for alleged unsatisfactory
performance, but on 29 January 2008, the DIA returned Petitioner to
service without prejudice (exhibit 16 to Petitioner’s application
at enclosure ({1)).

e., On 24 July 2008, Petitioner submitted a complaint of wrongs
under Article 138, Uniform Code of Military Justice {later styled
a complaint under Article 1150, U. S. Navy Regulations) (exhibit 4
to Petitioner’s application at enclosure (1)) about the contested

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fitness report. The first endorsement, from the Director of
Information, Plans and Security, Office of the Chief of Naval
Operations (exhibit 6 to Petitioner's application at enclosure {1)),
strongly recommended that the report at issue be removed. The second
endorsement, from the Deputy Chief of Naval Operations, Information,
Plans and Strategy (exhibit 7 to Petitioner’s application at
enclosure (1)), concurred with the first endorsement. The chird
endorsement, from the Director, DIA (exhibit 8 to Petitioner’s
application at enclosure (1)) made no recommendation. The fourth
endorsement (exhibit 9 to Petitioner's application at enclosure (1))
was from the reporting senior, enclosing an e-mail detailing
shortcomings he had noted in Petitioner’s performance. The fifth
endorsement, from the Commandant, Naval District Washington (exhibit
10 to Petitioner's application at enclosure (1)), recommended
approving Petitioner’s request. The final decision of 31 August
2009, by the Air Force major general who was the Commander,
Headquarters Air Force District of Washington (exhibit 11 to
Petitioner's application at enclosure (1)}, was to deny relief.

f. Petitioner provided a supporting statement from a Navy
commander (now captain) (exhibit 12 to Petitioner's application at
enclosure (1)) showing that “there was a ‘personal dimension’ to
[Petitioner's] dismissal” and that Petitioner and the reporting
senior “had differing personalities [chat] made him difficult to work
with and was contributory to his decision making process.”
Specifically concerning the example the reporting senior cited with
regard to the marks in plocks 37 and 38, Petitioner asserts he
contacted higher authority about the issue of his wife’s travel
expenses only after he had failed to get a satisfactory response from

the reporting senior.

g. In enclosure {2), the Navy Personnel Command (NPC) office
having cognizance over the subject matter of Petitioner’s case
commented to the effect the request should be denied.

h. Enclosure (3) is Petitioner’s counsel’s response to the NPC
advisory opinion. She provided supporting statements (enclosures
E and F) to corroborate Petitioner's contention that he did not
deserve an adverse fitness report.

CONCLUSION :

Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (2), the Board finds an injustice
warranting the requested relief. In this connection, the Board
finds the contested fitness report totally inconsistent with the
previous report from the same reporting senior, which covered a

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longer period of over a year. Further, the Board finds the contested
report to be internally contradictory, in that the marks,
particularly the promotion recommendation, are much too high to be
consistent with the adverse comments. In addition, the Board finds
this report goes against the action of DIA returning Petitioner to
service without prejudice. Finally, the Board is persuaded that the
example the reporting senior gave to support the marks in blocks 37
and 38 is invalid, as Petitioner did nothing wrong. In view of the
above, the Board recommends the following corrective action:

RECOMMENDATION:

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

Period of Report
Date of Report Reporting Senior From To

2Apros 1Augd07 30Apro8

 

b. That there be inserted in Petitioner's naval record a
memorandum in place of the removed report containing appropriate
identifying data concerning the report; that the 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.

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.
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.

Bram do frets

JONATHAN S. RUSKIN

ROBERT D. ZSALMAN
Acting Recorder

Recorder

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

and action. |
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Reviewed and approved: + (Ib [i .

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ROBERT L, WOODS

Assistant Genera! Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 40548
Washington, DC 20350-1000