From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF USNR, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) BUPERSINST 1610.10D Encl: (1) DD Form 149 w/enclosures (2) Memo, subj: Letter of Relief, 31 Jan 19 (3) Fitness Report and Counseling Record (20180801-20190207) (4) Petitioner Memo, subj: Statement IRT Fitness Report Covering 18AUG01-19FEB07, 16 May 19 (5) NPC E-mail, subj: Re: Request for Statement IRT detaching FITREP dated 07 FEB 19, 10 July 2019 (3:05PM) (6) Memo, subj: Complaint of Wrongs under Article 1150, U.S. Navy Regulations, 23 Jan 20 (7) Petitioner Memo, subj: Complaint of Wrongs under Article 1150, U.S. Navy Regulations, 21 Feb 20 (8) NPC Memo, subj: [Petitioner], 3 Mar 20 (9) Petitioner Memo, subj: Response to PERS 32 Statement and Amplifying Information ICO [Petitioner] BCNR Package, 16 Aug 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing an unjust fitness report from his official military personnel file. 2. The Board reviewed Petitioner’s allegations of error and injustice on 18 February 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s 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, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Petitioner assumed command of the unit on 1 December 2017. He asserts that he identified significant deficiencies immediately upon assuming command, and that he was met with resistance within his unit and a lack of support from his reporting senior (RS) as he attempted to standardize and operationalize the unit. c. After a training exercise in August 2018 during which he purportedly heard comments from members of the command, Petitioner’s RS directed a command climate assessment of the unit. The climate survey results were released on 23 October 2018, with 24 respondents out of approximately 60 recipients. On 25 October 2018, Petitioner’s RS counseled Petitioner regarding the findings of the survey, indicating that he had concerns with Petitioner’s leadership style. According to Petitioner, this was the first time that Petitioner’s RS had expressed such concerns. However, Petitioner asserts that they agreed upon the measures necessary to correct the issues identified in the climate survey and that there would likely be some disgruntled members of the unit as Petitioner instituted his reforms. Petitioner also asserts that he subsequently received positive feedback from his RS as he attempted to implement the improvements discussed during the counseling. d. By memorandum dated 31 January 2019, the RS notified Petitioner that he was relieved from command of the unit, effective immediately, due to RS’s loss of confidence in his ability to lead the unit. The RS acknowledged steps taken by Petitioner to improve the climate and morale of the unit, but stated that these steps would not be able to overcome the damage that he had already done. The RS further stated that Petitioner’s ability to effectively support SC directorates was adversely impacted by his inability to establish and maintain positive relationships. See enclosure (2). Petitioner asserts that this relief came without any warning from his RS. e. By signature dated 7 February 2019, Petitioner’s RS issued Petitioner a Detachment of Individual/Regular fitness report for the period 1 August 2018 to 7 February 2019. Block 41 of the fitness report states that it was submitted “upon the occasion of [Petitioner] being removed from his position of unit CO, due to my loss of confidence in his leadership of the unit.” The overall trait average in the report was 2.83, with ratings of 2.0 for block 34 (Command or Organizational Climate/Equal Opportunity) and block 38 (Leadership). Comments in block 41 explain that issues with unit morale and [Petitioner’s] leadership style came to light in August 2018 and were confirmed by a command climate survey. The RS reported that he counseled Petitioner in October 2018, but that by January 2019 it became clear that the unit had further deteriorated with adverse consequences for unit readiness, retention and morale. Petitioner signed the fitness report, but indicated his intent to submit a statement in accordance with reference (b). See enclosure (3). f. By memorandum dated 16 May 2019, Petitioner rebutted the subject fitness report. This rebuttal highlighted the problems that Petitioner claims to have inherited in the unit, and the challenges that he faced in attempting to rectify them. It also asserts that Petitioner received only positive feedback from his RS subsequent to the command climate survey as he attempted to implement corrections, and that his relief came without warning or explanation. See enclosure (4). g. By e-mail dated 10 July 2019, NPC confirmed that the Petitioner’s 16 May 2019 rebuttal statement was not received with the subject fitness report that was submitted for filing. See enclosure (5). h. On 12 September 2019, Petitioner filed an Article 1150 complaint against his RS regarding his relief from command and the resulting unjust fitness report. By memorandum dated 23 January 2020, the SC commander summarily dismissed Petitioner’s complaint because Petitioner was not a proper complainant since he was no longer on active duty, he was no longer RS’s general court-martial convening authority due to RS’s retirement, and the complaint was not timely. See enclosure (6). Petitioner objected to this decision by memorandum dated 21 February 2020, noting that the initial wrongdoing occurred on 7 February 2019 when RS was subject to Petitioner’s command, and that his complaint was delayed only because of the RS’s failure to comply with the procedural requirements of reference (b). Specifically, he asserted that it was only his discovery in July 2019 that RS had submitted the subject fitness report without his rebuttal that made the need for the Article 1150 complaint clear. Petitioner requested reconsideration of the Article 1150 complaint dismissal, but there is no evidence in the record that this request was acted upon. See enclosure (7). i. By memorandum dated 3 March 2020, Navy Personnel Command (NPC) (PERS-32) provided an advisory opinion (AO) regarding the subject fitness report for the Board’s consideration. The AO asserts that the subject fitness report was valid, and that the RS accurately prepared and submitted the report in accordance with reference (b). The AO explains that RS’s actions must be reviewed for an abuse of discretion, and that it could find no such abuse since Petitioner’s relief and the resulting adverse fitness report were supported by a proper rationale. The AO also noted that Petitioner exercised his right to file an Article 1150 complaint, but that SC reviewed and denied the complaint because it was defective and untimely. See enclosure (8). j. By memorandum dated 16 August 2020, Petitioner rebutted the findings of the AO. Specifically, Petitioner asserted that the AO failed to address two significant defects with the subject fitness report. First, he noted that the AO did not address the evidence he provided that the RS had agreed with the changes he was implementing and that the RS had provided only positive feedback regarding his efforts to improve the issues identified in the command climate survey upon which the relief was based. He also notes that that there was no triggering event or action since his RS counseling in October 2018 that would have warranted his removal from command. Second, Petitioner noted that the AO did not identify or comment upon the RS’s “pattern of questionable procedural and ethical handling of a matter as significant as relieving a Commanding Officer of command.” Specifically, Petitioner asserted that the RS did not comply with the procedures of reference (b) for a regressing fitness report, failed to meet submission timeline requirements, failed to include or endorse his statement in response to the fitness report, purposefully backdated his signature, and removed the dating of [Petitioner]’s own signature prior to submission. Petitioner also asserted his belief that his RS was satisfied with his efforts in response to the climate survey results and with his performance due to the positive feedback that he received, and that his RS’s actions were motivated by the disclosure of the command climate survey results and the RS’s inability or unwillingness to account for his own actions relative to the findings. See enclosure (9). CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Board finds an injustice in Petitioner’s adverse fitness report for the period 1 August 2018 to 7 February 2019 that warrants relief. Specifically, the Board determined that Petitioner identified significant deficiencies upon his assumption of command of the unit, and endeavored to institute reforms that he knew would be unpopular. The reaction to these unpopular reforms disgruntled some members of the command, which resulted in the initiation of a command climate survey with foreseeably negative results. The Board further found that Petitioner’s RS counseled him regarding the results and provided feedback regarding how to improve, but then failed to provide Petitioner with any meaningful opportunity to make such improvements. Rather, the RS relieved Petitioner from command of the unit with no explanation of what had changed since the counseling and after offering only positive feedback in the interim. These circumstances, particular the inexplicable timing of the relief decision relative to the basis for relief, convinced the Board that Petitioner was more likely than not correct in his assertion that the RS took this action because of his inability to account for his own actions relative to the climate survey results, and decided to relieve Petitioner from command to distance himself from the issue. The Board also found that the RS’s failure to review or endorse Petitioner’s rebuttal and to include it with the submission the subject fitness report for filing, combined with the dismissal of Petitioner’s Article 1150 complaint on technical grounds, essentially denied Petitioner any meaningful recourse to appeal the contents of the fitness report. Accordingly, the Board determined, contrary to the findings of the AO, that the fitness report generated due to Petitioner’s relief from command was unjust, and that relief is therefore warranted under the circumstances. RECOMMENDATION: In view of the above, the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner’s Fitness Report and Counseling Record for the reporting period 1 August 2018 to 7 February 2019 be removed from Petitioner’s naval record; That Petitioner’s rebuttal to the subject fitness report, dated 16 May 2019, be removed from Petitioner’s naval record; That any reference to Petitioner’s relief from command of the unit be removed from Petitioner’s naval record. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 3/17/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: Board Recommendation Approved (Grant Relief) 4/1/2021 Assistant General Counsel (M&RA)