DEPARTMENT OF THE NAVY
                               2 NAVY ANNEX
                         WASHINGTON DC 2O37O~51oo

                                                     Docket No. 05819-06
                                                     22 January 2007

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. You requested removal of all your
fitness reports from Naval Hospital Charleston, specifically, the
six reports spanning the period from 16 June 2001 through 29
November 2004.

A three—member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 19
January 2007. 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
opinions furnished by the Navy Personnel Command dated 10
September and 23 October 2006, copies of which are attached. The
Board also considered your memorandum dated 5 January 2007 with
enclosures and the Commander, Navy Region Southeast letter dated
27 June2003 concerning your complaint of wrongs underArtjcle 138,
Uniform Code of Military Justice.

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 dated 10 September 2006. The Board noted
that the contested reports for 16 June to 3 August 2001 and
4 August to 31 October 2001 were “not observed.” Only the
reports for 1 November 2001 to 31 October 2002, 1 November
2002’ to 26 June 2003, 27 June to 31 October 2003 and 1
November 2003 to 29 November 2004 were observed.
Specifically concerning the contested fitness report ending 23 June
2003, the Board noted that the applicable directive was Bureau of
Naval Personnel Instruction (BUPERSINST) 1610.10, not BUPERSINST 1610.
lOA, dated 20 September 2005. The Board observed that BUPERSINST
1610.10, enclosure (2), paragraph 4 states a fitness report is adverse
if it “shows a strong decline in performance within the same pay
grade.” The Board found the report in question, regardless of whether
it is declining as that term is used in the applicable directive, does
include narrative that explains the decline of your marks in blocks 35
(“Military Bearing/Character”) and 38 (“Leadership”) from the
immediately preceding report ending 31 October 2002 in the same grade
from the same reporting senior. The Board did not find that the
narrative contradicted the marks assigned in the report ending 26 June
2003. The Board was unable to find this report was in reprisal f or
either your Article 138 complaint or your rebuttal to the preceding
report. The Board agreed with you that block 30 (“Date Counseled”) of
the report ending26 June2003 should not have been marked “NOTREQ” (not
required), as April 2003, when you should have received mid-term
counseling, fell within the reporting period. However, the Board did
not consider this a material error, as it was unable to find you did
not receive counseling during the period, noting the report indicates
you received “continued guidance.” In any event, the Board generally
does not grant relief on the basis of an alleged absence of
counseling, as counseling takes many forms, so the recipient may not
recognize it as such when it is provided. The Board also agreed with
you that block 40 (recommendation for next career milestone) should
not have been left blank, but it did not consider this a material
error warranting relief. Finally, your never having been assigned a
promotion recommendation above “Promotable” (third best of five
possible marks) and your having received an end of tour award that was
downgraded from that initially recommended did not persuade the Board
that any of the fitness reports at issue was materially erroneous or

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


                                      ROBERT D.ZSALMAN
                                      Acting Executive Director
                            DEPARTMENT OF THE NAVY
                                NAVY PERSONNEL COMMAND
                                   5720 INTEGRITY DRIVE
                                 MILLINGTON TN 38055-0000

                                                                      10 September 2006

                        OF NAVAL RECORDS

Via: PERS/BCNR Coordinator (PERS-3 IC)



End: (1) BCNR File 05819-06 w/Service record

1. Enclosure (1) is returned. The member requests the removal of her fitness report for the
period 1 November 2002 to 26 June 2003. If approved, the member requests all subsequent
fitness reports from Naval Hospital Charleston be removed from her records.

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 is signed by the member acknowledging the contents of the report and her right to
submit a statement. The member indicated on the report that she intended to make a
statement. The member’s statement and the reporting senior’s endorsement are both
included in the member’s record.

  b. The report in question is an adverse Detachment of Reporting Senior/Regular report.
The member alleges the following comments on her report are unfair and unjust:

      “Although organized and an otherwise effective program manager, she requires
continued guidance on interpersonal communication skills. The potential impact on
credibility caused her to be relieved as CEMO”.

Additionally, the member believes the two performance trait marks of ‘3.0’ and one
performance trait mark of ‘2.0’ were issued in reprisal by the reporting senior due to the
petitioners submission of an Article 138 complaint.

 c. The report is a valid fitness report.
      d.       The member accurately exercised her rights to file a Complaint of Wrongs,
Article 138, UCMJ, under the provisions of Article 1126, U.S. Navy Regulations (1990).
However, per the official response the member received from the Deputy Assistant Secretary of
the Navy (Military Program) regarding the Article 138 filed, the general court-martial convening
authority, Commander Navy Region Southeast, concluded that the petitioner’s allegations were
without merit under JAGMAN Chapter III.

   e. The evaluation of a member’s performance, the member’s standing within a summary
group, and corresponding promotion recommendation that is limited by forced distribution
guidelines, are all responsibilities of the reporting senior. It is not uncommon for members to
disagree with their reporting senior’s appraisal. In this case, the reporting senior assigned the
member a promotion recommendation of “Promotable,” which in no way equates to deficient

    f. The reporting senior is charged with commenting on the performance and/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.

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

3. We recommend the member’s record remain

                                                    By direction
                  DEPARTMENT OF THE NAVY
                      NAVY PERSONNEL COMMAND
                         5720 INTEGRITY DRIVE
                       MILLINGTON TN 38055-0000
                                                        23 Oct 2006


Via: Assistant for BCNR Matters (PERS-3lC)


Ref: (a) PERS-311 memo of 10 Sep 2006

Encl:   (1) BCNR File O58l9-06/w record 1. Enclosure (1) is
        returned. Concur with comments and recommendations
        found in reference (a)

2 After examination DD Form 149, we find no request that is action
able by PERS-480 does not request that her failures of selection
be removed nor does she request a special promotion selection
board be held on her behalf. does make a comment in her DD Form
149 addendum that she believes that she failed to select to the
rank of commander due to the fitness reports given her during a
tour at Naval Hospital Charleston. Selection board deliberations
are protected by 10 USC and may not be divulged to anyone not a
board member or board recorder. Therefore, there is no way to
conform suspicion that these fitness reports were the cause of her
four failures of selection. The board conducts itself in
accordance with law, service regulations and the precept issued by
the Secretary of the Navy. offered no evidence that the selection
boards that did not choose her for promotion to commander acted in
any way other than those prescribed by law and service

                                      Director, Officer Career
                                      Progression Branch

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