DEPARTMENT OF THE NAVY
BOARD FOR COPRECTIQN OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51oo

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Docket No. 05819-06
22 January 2007

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552. You requested removal of all your fitness reports from Naval Hospital Charleston, specifically, the six reports spanning the period from 16 June 2001 through 29 November 2004.

A three—member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 19 January 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by the Navy Personnel Command dated 10 September and 23 October 2006, copies of which are attached. The Board also considered your memorandum dated 5 January 2007 with enclosures and the Commander, Navy Region Southeast letter dated 27 June2003 concerning your complaint of wrongs underArtjcle 138, Uniform Code of Military Justice.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion dated 10 September 2006. The Board noted that the contested reports for 16 June to 3 August 2001 and 4 August to 31 October 2001 were “not observed.” Only the reports for 1 November 2001 to 31 October 2002, 1 November 2002’ to 26 June  2003, 27 June to 31 October 2003 and 1 November 2003 to 29 November 2004 were observed.

Specifically concerning the contested fitness report ending 23 June 2003, the Board noted that the applicable directive was Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10, not BUPERSINST 1610. lOA, dated 20 September 2005. The Board observed that BUPERSINST 1610.10, enclosure (2), paragraph 4 states a fitness report is adverse if it “shows a strong decline in performance within the same pay grade.” The Board found the report in question, regardless of whether it is declining as that term is used in the applicable directive, does include narrative that explains the decline of your marks in blocks 35 (“Military Bearing/Character”) and 38 (“Leadership”) from the immediately preceding report ending 31 October 2002 in the same grade from the same reporting senior. The Board did not find that the narrative contradicted the marks assigned in the report ending 26 June 2003. The Board was unable to find this report was in reprisal f or either your Article 138 complaint or your rebuttal to the preceding report. The Board agreed with you that block 30 (“Date Counseled”) of the report ending26 June2003 should not have been marked “NOTREQ” (not required), as April 2003, when you should have received mid-term counseling, fell within the reporting period. However, the Board did not consider this a material error, as it was unable to find you did not receive counseling during the period, noting the report indicates you received “continued guidance.” In any event, the Board generally does not grant relief on the basis of an alleged absence of counseling, as counseling takes many forms, so the recipient may not recognize it as such when it is provided. The Board also agreed with you that block 40 (recommendation for next career milestone) should not have been left blank, but it did not consider this a material error warranting relief. Finally, your never having been assigned a promotion recommendation above “Promotable” (third best of five possible marks) and your having received an end of tour award that was downgraded from that initially recommended did not persuade the Board that any of the fitness reports at issue was materially erroneous or unjust.

In view of the above, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep mind that a presumption of regularity attaches to all official records. Consequently, when applying for  correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

ROBERT D.ZSALMAN
Acting Executive Director
Enclosures