DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
701.5. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

HD
Docket No. WR4797-13

27 march 20314

Chairman, Board for Correction of Naval Records

  

From:
To: Secretary of the Navy
Subj: CDR

REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 30 Apr 13 w/attachments
(2) PERS-32 memo dtd 23 Aug 13

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 May 2011 to 30 April
2012 and the extension letter dated 28 June 2012, extending the period

of this report to 28 June 2012 (copies at Tab A). Petitioner also
requested removing the concurrent report for 4 November 2011 to
30 April 2012, but this report is not in his record. Finally,
Petitioner impliedly requested removing his failure of selection by
-the Fiscal Year 14 Line Captain Selection Board, SO as to be
considered by the selection poard next convened to consider officers

of his category for promotion to captain as an officer who has not
failed of selection for promotion to that grade. .

>. he Board, consisting of Messrs. Genteman, Spooner and Swarens,

reviewed Petitioner's allegations of error ang injustice on
27 March 2014, 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.

the facts of record pertaining

3, The Board, having reviewed all
and injustice, finds as follows:

to Petitioner's allegations of error

a. Before applying to this Board,
administrative remedies available under ex
within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.

c. Petitioner contends that the contested fitness report, dated
21 June 2012, was unwarranted and submitted in reprisal for his
protected communication, a Naval Inspector General complaint
received on 12 December 2011, the report of which was dated
10 February 2012 (documentation at enclosure (4) to Petitioner’s
application). Correspondence at enclosure (5) to Petitioner’s
application shows the Department of Defense Inspector General
(DODIG) investigation of his “Whistleblower” complaint concluded
that the report at issue was the result of a sexual harassment
investigation that was substantiated against him, rather than
reprisal. He disputes the finding that it was substantiated.

a. The fitness report at issue contains nothing derogatory, but
it is a declining report. A copy of the preceding report from the
same reporting senior, for 6 September 2010 to 30 April 2011, is at
Tab B. In the contested report, Petitioner was marked down in five
areas. Specifically, blocks 34 (“Command or Organizational
Climate/Equal Opportunity”) and 35 (“Military Bearing/Character’” )
were marked down from “4.0” (second best of five possible marks) to
“3.0” (third best); blocks 36 ("Teamwork") and 38 (“Leadership”) from
"5.0" (best) to “4.0”; and block 42 {*Promotion Recommendation -
Individual”) from “Early Promote” (best) to “Must Promote” (second

best). The lowered promotion recommendation mark was the result of
forced distribution (another officer received the only “Early
Promote” mark authorized in a peer group of two). Bureau of Naval

Personnel Instruction 1610.10C, enclosure (2), paragraph 13-9h says
“If the decline in performance is based on performance [rather than
forced distribution limits on promotion recommendations], comments
should explain the decline.” Block 41 ("Comments on Performance”)
of the report at issue includes no such explanation. Petitioner
marked the block indicating that he intended to submit a statement,
but no statement appears in his record.

e. The reporting senior gave Petitioner a nonpunitive letter
of caution dated 1 September 2011 (copy at enclosure (3) to
Petitioner’s application). By letters of 28 November and 15
December 2011, he requested Petitioner's detachment for cause (DFC),
but the Commander, Navy Personnel Command (NPC) letter of 20 June
2012 (copy at enclosure (1) to Petitioner's application) disapproved
the DFC. Petitioner was also the subject of admiral’s mast, but it
resulted inno nonjudicial punishment. Petitioner requests that the
contested fitness report and extension letter be removed to comply
with the Commander, NPC letter of 20 June 2012. This letter advised
the reporting senior that the DFC had been disapproved, and it
-—

directed that Petitioner’s fitness report not label his departure
as a DFC and further directed that the request for DFC not be filed
in his official personnel record.

f£. Insupport of his application, Petitioner submitted numerous
statements commending his performance, together with a favorable
Performance Information Memorandum (PIM) and an end of tour award
package.

g. In enclosure (2), the NPC office with cognizance over the
subject matter of Petitioner’s case has commented to the effect his
request should be denied, noting that the fitness report in question
makes no reference to the disapproved DFC.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board
finds that Petitioner’s request should be denied.

The Board substantially concurs with enclosure (2) in finding that
the contested fitness report and extension letter should stand. In
this connection, the Board finds they are in compliance with the
commander, NPC letter of 20 June 2012, and it is unable to find they
were in reprisal for Petitioner’s protected communication. The
supporting statements, PIM and end of tour award package did not
persuade the Board that Petitioner should have received a more
favorable fitness report. Finally, the Board finds it a harmless
error that the reporting senior did not provide comments explaining
the decline in marks from the previous report he had submitted. In
this regard, the Board particularly notes the finding of the DODIG
that the contested fitness report was the result of a sexual
harassment investigation that was substantiated against Petitioner.
The Board finds it was to Petitioner’s benefit that the reporting
senior did not mention this.

Since the Board found insufficient basis to correct Petitioner's
fitness report record, it had no grounds to recommend removing his
failure of selection for promotion.

In view of the above, the recommendation of the Board is as follows:

RECOMMENDATION;

a. That 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.

wr =
Station B, barat
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

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

and action.
ADS, (fee

ROBERT D. ZSALMAN
Acting Executive Director

Reviewed and approved:

[ett Mod.