DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2969-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. §1552 (b) BCNR ltr TDK Docket No. 9007-16 of 6 Feb 17 (c) BCNR ltr TDK Docket No. 8297-17 of 28 Nov 17 (d) BUPERSINST 1610.10C Encl: (1) DD Form 149 (2) Fitness Report and Counseling Record for the reporting period 31 Aug 12 to 31 Jan 13 (3) Fitness Report and Counseling Record for the reporting period 22 Aug 14 - 10 Mar 15 1. Pursuant to the provisions of reference (a), Petitioner, a commissioned officer in the Navy, filed enclosure (1) with this Board requesting her record be corrected by (1) removing her fitness report and counseling record (“FITREP”) ending 31 January 2013 and replace it with a no-fault memorandum, (2) remove her concurrent fitness report and counseling record (“concurrent FITREP”) ending 10 March 2015, (3) grant the convening of a FY-19 Active Duty Staff Corps Lieutenant Commander Special Selection Board (SSB), and (4) remove any failures of selection. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 30 April 2019, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of the 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 available under existing law and regulations within the Department of the Navy. b. On 11 June 2014, Petitioner filed a Uniform Code of Military Justice Article 138 Complaint of Wrongs against her Reporting Senior (RS). Subsequently, BUMED changed Petitioner’s RS responsibilities to Petitioner’s Immediate Supervisor In Charge (ISIC), and PERS-32 replaced two fitness reports written by her regular RS, for the reporting periods 1 February 2013 to 31 January 2014 and 1 February 2014 to 31 January 2015, with reports written by her ISIC. Petitioner was also granted consideration by a FY-16 Active Duty Staff Corps Lieutenant Commander SSB, and the BCNR granted in reference (b) the removal of her FY-16 failure of selection. c. Per reference (c), the BCNR granted removal of the same two aforementioned fitness reports, and directed their replacement with reports written by another officer designated as Petitioner’s RS. This corrective action was directed based on Petitioner’s ISIC previously endorsing the RS’s position regarding the Complaint of Wrongs, and based on the ISIC’s alleged bias against Petitioner. Per reference (c), the BCNR also granted Petitioner’s request to remove her FY17 and FY-18 failures of selection. d. Petitioner, while on a temporary duty assignment, was issued enclosure (3), a concurrent FITREP for the reporting period 22 August 2014 to 10 March 2015. Petitioner asserted, in part, that the concurrent FITREP is inaccurate and redundant. She claimed that her RS, who was later deemed unqualified to make any decisions on her behalf, including her transfer to another command without her consultation, directed her temporary transfer. She also claimed, without substantiating evidence, that her RS exercised unlawful influence in an effort to support his own poor evaluation of her performance, and that her RS did not seek out her input to draft the report. Petitioner did not request removal of this report in her previous two petitions to the BCNR. Further, Petitioner contends that this report continues to adversely affect her chances of promotion. e. Per reference (d), concurrent reports provide a record of significant performance in a temporary additional duty status or designated billet assignment. They are optional unless directed by higher authority, and may not be submitted by anyone in the regular RS’s direct chain of command. A concurrent report must be countersigned by the regular RS, who may also make it the Regular report for the period concerned if continuity is maintained with the previous regular or regular/concurrent report. Petitioner’s concurrent FITREP was not signed by her regular RS in accordance with Navy policy. Nevertheless, the Division Director, Performance Evaluations Division (PERS-32) accepted the concurrent FITREP as a valid report without the countersignature of Petitioner’s regular RS. f. Petitioner was eligible for and failed selection by the FY-19 Active Duty Staff Corps Lieutenant Commander Promotion Selection Board. CONCLUSION Upon review and consideration of all the evidence of record and in light of references (b), (c), and (d), the Board finds the existence of an injustice warranting partial relief. In this regard, the Board noted that two potentially biased fitness reports written by her regular RS, and rewritten by Petitioner’s ISIC, were directed by the BCNR to be removed and replaced by another officer designated as Petitioner’s RS. The Board noted that enclosure (2) was also written by Petitioner’s regular RS and rewritten by the ISIC. However, there was no alternate RS available during the reporting period to rewrite the report, so the Board concluded that it shall be removed from Petitioner’s official military personnel file (OMPF). With regard to the concurrent FITREP at enclosure (3), the Board noted that it is a valid report. Additionally, the report was reviewed and accepted by PERS-32, and entered into Petitioner’s OMPF. Contrary to Petitioner’s assertion that her [regular] RS exercised unlawful influence in an effort to support his own poor evaluation of her performance, the Board noted that the regular RS did not countersign the concurrent FITREP, and there is no evidence that he had any knowledge or influence regarding its content. The Board also noted that there is no evidence, and the Petitioner provided none, to substantiate her assertion that the report is inaccurate and redundant, or how her transfer to another command somehow invalidates the FITREP. The Board concluded that the concurrent FITREP shall remain in her OMPF. The Board was not willing to grant the convening of a FY-19 SSB. In this regard, the Board noted that although Petitioner has pursued corrections to her fitness reports as far back as 2015, she did not exercise reasonable diligence to have the report at enclosure (3) removed from her record until after her FY-19 failure of selection. However, the Board noted that the FITREP at enclosure (2) was available for consideration by the FY-19 Promotion Selection Board, and it may have made her less competitive than her peers who were selected for promotion. The Board determined that by granting the removal of the FITREP at enclosure (2), her record is substantially changed, and removal of her FY-19 failure of selection is warranted. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s record be corrected by removing enclosure (2), the fitness report and counseling record for the reporting period 31 August 2012 to 31 January 2013, and that a memorandum be filed in place of the report in order to maintain continuity. Petitioner’s naval record be corrected by removing the failure of selection incurred by the FY-19 Active Duty Staff Corps Lieutenant Commander Promotion Selection Board. Petitioner's naval record be corrected so that she will be considered by the earliest possible selection board convened to consider officers of her category for promotion to lieutenant commander as an officer who has not failed of selection for promotion to that grade. No further relief be granted. 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. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy 5/3/2019