DEPARTMENT OF TH NAVY
BOARD FOR CORRECTION OF N VAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2037 -5100

HD: hd
Docket No. 06805-07
5 November 2007

From:	Chairman, Board for Correction of Naval Records
To:	Secretary of the Navy
	
         Subj	___
		REVIEW OF NAVAL RECORD

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

End:	(1) DD Form 149 dtd 20 Jul 07 w/attachments
(2)	PERS-31l memo dtd 10 Sep 07
(3)	Subjects ltr dtd 15 Oct 07 w/end and ltr dtd 24 Sep 07
(4)	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 the applicable naval record be corrected by removing the fitness reports for 14 June 2005 to 31 January 2006 and 1 February to 17 March 2006, copies of which are at Tabs A and B, respectively.

2.	The Board, consisting of Mses. Gilbert and Willis and Mr. Hess, reviewed Petitioner’s allegations of error and injustice on 1 November 2007. Pursuant to the Board’s regulations, the majority, Mses. Gilbert and Willis, determined that the corrective action indicated below should be taken on the available evidence of record. The minority, Mr. Hess, recommended that Petitioner’s request be denied. 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.	The contested fitness reports are the only two reports Petitioner has received from the reporting senior concerned. Both are lieutenant reports. The report for 14 June 2005 to 31 January 2006 marked Petitioner “Promotable” (third best of five possible promotion recommendations), with 25 peers above him and one with him. The reporting senior had no limit on the number of lieutenants he could mark “Must Promote” (second best). The detachment of individual report for 1 February to 17 March 2006 marked Petitioner “Must Promote,” and it did not compare him with any peers. The uncontested lieutenant report for 1 February to 13 January 2005, the period immediately before the reports at issue, was submitted by a different reporting senior at the same station. It marked Petitioner “Must Promote,” with six lieutenants above him and 19 with him. A copy of this report is at Tab C.

d.	At enclosure (1), Petitioner provided the report dated 3 October 2006 of investigation of a Navy Hotline complaint against the reporting senior who submitted the contested reports. It substantiates that the reporting senior committed misconduct, specifically, fraternization, adultery and making a false official statement. Petitioner alleges he was marked unfairly because the reporting senior played favorites, and he was not a member of the favored group. He contends the contested report for 14 June 2005 to 31 January 2006 represents a decline from his previous report.

e.	In enclosure (2), PERS-31l, the Navy Personnel Command office with cognizance over the subject matter of Petitioner’s case, commented to the effect that his request should be denied, as he has not shown the disputed fitness reports to be in error. PERS-3ll stated these reports were not technically “declining,” as that term is defined in Bureau of Naval Personnel Instruction 1610.10A, as the preceding report was from a different reporting senior.

f.	In enclosure (3), Petitioner provided an endorsement from his current commanding officer recommending removal of the reports at issue, since not granting relief would harm Petitioner’s future promotion opportunities. Enclosure (3) also includes a statement from a lieutenant commander who says that he served with Petitioner from September 2003 to March 2006, that those officers in the reporting senior’s “special group” were “allowed to get away with very 
inappropriate behavior”  while others were treated “more harshly for minor issues,” that the reporting senior applied a “double standard” in preparing fitness reports and that Petitioner was not in the reporting senior’s “special group.” He further states he believes Petitioner “was specially singled out and received the most unjust treatment of any of the junior officers,” that he concurs with Petitioner’s assertion that the contested fitness reports marked him unjustly and that he recommends their removal.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding enclosure (2), the majority of the Board finds an injustice warranting the requested relief. The majority particularly notes the Navy Hotline complaint report, which substantiated misconduct by the reporting senior, and the lieutenant commander’s supporting statement at enclosure (3) In view of the above, the majority recommends the following corrective action:

MAJORITY RECOMMENDATION:

a.	That Petitioner’s naval record be corrected by removing the following fitness reports and related material:
	Period of Report
Date of Report	Reporting Senior	From	To
	14Feb06	14Jun05	31Jan06
	17Mar06	1Feb06	17Mar06

b.	That there be inserted in Petitioner’s naval record ONE memorandum in place of the removed reports containing appropriate identifying data; that the memorandum state that the portion of Petitioner’s fitness report record for 14 June 2005 to 17 March 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 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.
3
d.	That any material directed to be removed from Petitioner’s naval record be returned to this 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.

MINORITY CONCLUSION:

Upon review and consideration of all evidence of record, and especially in light of enclosure (2), the minority of the Board finds Petitioner’s request should be disapproved. The information the majority notes does not persuade the minority that Petitioner was marked unfairly. In view of the above, the minority recommendation is as follows:

MINORITY RECOMMENDATION:

a.	That Petitioner’s application 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.
		
ROBERT D. ZSALMAN		JONATHAN S. RUSKIN
Recorder		Acting Recorder

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

							W. DEAN PFEIFFER
							Executive Director

MAJORITY REPORT
Reviewed and approved:	

Robert T. Call
Assistant General Counsel
Manpower and Reset
MINORITY REPORT
Reviewed and approved: __________________________