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

									HD: hd
				Docket No. 11211-07 
				29 February 2008

.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 28 February 2008. 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 opinion furnished by the Navy Personnel Command dated 25 January 2008, a copy of which is attached. The Board also considered your fax letter dated 20 February 2008.

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.

Specifically regarding the contested fitness report for 16 September 2005 to 14 August 2006, the Board agreed with you that the reporting senior failed to provide the required narrative justification for the adverse marks assigned. However, the Board considered this a harmless error, since the service record page 13 (“Administrative Remarks”) entry dated 14 August 2006 on file in your field service record clarifies that your recommendation for advancement was withdrawn by reason of “driving under the influence of alcohol.”

The Board substantially concurred with the comments contained in the advisory Opinion in concluding the contested report for 15 August to 15 September 2006 should stand. In this regard, the Board was unable to find there were any pending proceedings when the reporting senior commented on your arrest for driving under the influence of alcohol. Further, the Board noted that while you do assert there was no finding of guilty of that charge, you do not assert you were found not guilty.

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 in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
          Executive Director

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
					 5720 INTEGRITY DRIVE
                                                                    MILLINGTON TN 38055~0000	

 	1610
						      PERS-311
											25 January2008

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via:	PERS/BC~R Coordinator (PERS 3LC2)

Ref (a) BUPERSJNST 1610, IOA EVAL Manual

1.	Enclosure (1) is returned. The member requests the removal of~ his fitness reports for the periods of 16 September 2005 to 14 August 2006 and 15 August 2006 to 15 September 2006.

2.	Based on our review of the material provided, we find the following:

a.	A review of the member’s headquarters record revealed the reports in question to be on file. They are signed by the member acknowledging the contents of the reports and his right to submit statements. The member indicated on the reports that he did not intend to make a statement Per reference (a), Chapter 18, the member has two years from the ending date of the reports to submit a statement if he so desires.

b.	The first report in question ending 14 August 2006 is an adverse Special/Regular report. The member alleges the fitness report is contrary to the guidance in reference (a) and is unjust.

c.	The report is a valid report.

d.	The report in question states in block 41, Comments on Performance, that the evaluation was submitted to withdraw his promotion recommendation and remove him from the Senior Chief Promotion list. The member and the reporting senior signed the fitness report on 14 August 2006. Reference (a), chapter 3, page 3-6, subparagraph 3-9 (2 d) — Submission or Withdrawal of Enlisted Promotion (Advancement) Recommendation or Establishment of Performance Mark Average (PMA) authorizes the submission of a Special Report to document this action taken by the reporting senior. The fitness report was accurately prepared and submitted by the reporting senior in accordance with reference (a).

e.	The second report in question ending 15 September 2006 is Periodic/regular report. The member is contesting this report as also being contrary to reference (a), and unjust.
f.	The report is a valid report.
g.	Reference (a), Chapter 13, page 13-7; subparagraph 13-12 (a) ~Genera1 Commenting on Misconduct, specifically addresses how and when a reporting senior must document details of misconduct in a member’s performance evaluation report. It allows reporting seniors to ‘include comments on misconduct whenever the facts are clearly established to the reporting senior’s satisfaction’. Additionally, Chapter 13, page 13-7, subparagraph 13-1 1(t) allows reporting senior has to comment on alcohol abuse and has been required by SECNAVINST 5300.28D. The fitness report was accurately prepared and submitted by the reporting senior in accordance with reference (a).

h The reporting senior is charged with commenting on the performance or characters. each menthe( i nadir his Jim command and I report. The comments and performance hail marks assigned on a  are a! the reporting senior. The evaluation of a member’s c and concerning suitability for advancement and assignments are the responsibility ui the reporting senior.

i.	If the member believed the reporting senior prepared the reports in reprisal or in retaliation he could have filed a complaint of wrongful treatment under one of the processes set up for that purpose, e.g. Article 138, Navy Hotline, etc.

j.	The member does not prove the reports to be unjust or in enor.

3.	We recommend the member’s record remain unchanged.
direction