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

										 HD:hd
Docket No. 11261-07
28 March 2008

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 27 March 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 26 January 2008, a copy of which is attached. The Board also considered your letter dated 11 March 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. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. The Board was unable to find the reporting senior did not take due account of the extenuating circumstances outlined in your statement of 3 April 2007 in reply to the contested fitness report. Although the Board recognized that you were away from your parent command on temporary additional duty for all but the first two months of the reporting period in question, it noted that the reporting senior’s observation of your performance need not be direct. 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		

Enclosure

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

		1610
						PERS-311
											26 January 2008

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

Via:	PERS/BCNR Coordinator (PERS-3 I C)

Ref:	(a) BUPERS1NST 1610.1OA (EVALMAN)

End:	(1) BCNR File 04857-07 w/Service record

1.	Enclosure (1) is returned. The member requests the removal of his fitness report for the period 8 April 2006 to 31 January 2007.

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

a.	A review of the member’s headquarters record revealed the report in question to be on file. It was signed by the member acknowledging the contents of the report and his right to submit a statement. The member indicated on the report that he intended to make a statement. A statement was submitted by the member on 3 April 2007 and endorsed by the reporting senior on 4 April 2007. The member’s statement and the reporting senior endorsement are both included in the member’s record.

b.	The report in question is an adverse Periodic/Regular report ending 31 January 2007. The member alleges the report was in direct response from the Commanding Officer’s decision to have him Detached for Cause, which was later overturned by COMNAVPERSCOM. Additionally, he feels the report is inconsistent with his prior and subsequent fitness reports and if not removed from his record would interfere with his ability to progress in his Naval Career.

c.	The report is a valid report. Performance evaluations are unique to the specific period being evaluated, whether this fitness report is consistent with previous or subsequent reports has no bearing on the validity of the report.

d.		Reference (a), chapter 13, page 13-7, and subparagraph 13-12 (a) — General 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’. As indicated by the reporting senior on the report, the member was TAD during the some of the reporting period. However, reference (a) does not prohibit a member’s Regular Reporting Senior from submitting authorized reports such as this Periodic report, even though the member was temporarily assigned to perform duties at another command. The fitness report was accurately prepared and submitted by the regular reporting senior in accordance with reference (a).

e. The reporting senior is charged with commenting on the performance or characteristics of each member under his/her command and determine what material will be included in a fitness report. The comments and performance trait marks assigned on a report are at the discretion of the reporting senior. The evaluation of a member’s performance and making recommendations concerning suitability for appointment and assignments are the responsibility of the reporting senior.

f.	If the member believed the reporting senior prepared the report for 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.

g. The member does not prove the report to be unjust or in error.

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