Author: terry.bynum
Company: NMCI

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O370-5100

BJG
Docket No: 6678-06
17 November 2005

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 removing the fitness reports for 1 June 2004 to 9 May 2005 and 9 May to 30 June 2005, as well as your failure of selection by the Fiscal Year (FY) 2007 Lieutenant Colonel
Selection Board.

It is noted that the Commandant of the Marine Corps (CMC) has directed removing the fitness report for 1 June 2004 to 9 May 2005.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 16 November 2006. 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 report of the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB), dated 18 July2006, and the advisory opinion from the HQMC Officer Counseling and Evaluation Section, Personnel Management Division (NMOA-4), dated 18 August 2006, copies of which are attached. The Board also considered your rebuttal letter dated 15 August 2006 with enclosure.

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 warranting relief. In this connection, the Board substantially concurred with the comments contained in the report of the PERB, except it noted you do not concede your relief was warranted, rather you maintain you accepted it because you felt you had no choice.

The Board was unable to find your relief represented an attempt by the reporting senior (RS) to start with a new group of recruiting station commanders. The Board was likewise unable to find the RS committed any misconduct that would call into question his ability to evaluate your performance fairly and accurately. The Board duly noted the favorable letter the reviewing officer (RO) provided to the FY 2008 Lieutenant Colonel Selection Board, but it did not consider this invalidated the report at issue. The Board found the RS comments provided in section I adequately explained why a “not observed” report was not submitted. The Board was unable to find the RS never counseled you about perceived deficiencies in your performance. In this regard, 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 found the RS was permitted to allude to mission shortfalls before the pertinent period to explain the decision to relieve you; and it noted that the decision to remove the fitness report for the immediately preceding period was not based on a finding that you had no shortfalls during that period. The Board found the RO adequately adjudicated the differences between you and the RS. The Board did not accept your contention that another flag officer should have reviewed the report. Finally, concerning your unsupported allegation that commanders of other recruiting stations whose performance was less than that of your station did not receive adverse treatment, the Board was unable to find their circumstances were entirely comparable to yours.

The Board substantially concurred with the advisory opinion from Mr4OA-4 in concluding your failure of selection by the FY 2007 Lieutenant Colonel Selection Board should stand, as your selection would have been definitely unlikely in any event because of the remaining contested fitness report.

In view of the above, your application for relief beyond that effected by CMC 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

Enclosures

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103
IN REPLY REFER TO:
1610
MMER/ PERB
JUL 18 2008

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

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

(a) XXXX DD Form 149 of 22 Mar 06
(b)	MCO P1610.7E w/Ch 1-9

1.	Per MCO 1610.11C, the Performance Evaluation Review Board, with three members present, met on 12 July 2006 to consider petition contained in reference (a). Removal of his fitness reports covering the periods 20040601 to 20050509 (CH) and 20050509 to 20050630 (DC) was requested. Reference (b) is the performance evaluation directives governing submission of these reports.

2.	The petitioner requests that the report, covering the period 20040601 to 20050509 (CH), be expunged from his official record because it is unfair. He also requests the report, covering the period 20050509 to 20050630 (DC) be expunged because reporting officials did not have sufficient time to observe him and because the report was used as a disciplinary tool to justify his relief.

3.	In its proceedings, the Board concluded that the report covering the period 20040601 to 20050509 (CH) is administratively and procedurally incorrect as written and filed because reporting officials made adverse comments on the report and failed to afford the petitioner an opportunity to comment. The Board also concluded that the report covering the period 20050509 to 20050630 (DC) is administratively and procedurally correct as written and filed. The following is offered as relevant:

a.	In regard to the report covering the period 20040601 to 20050509 (CH), the Board directed that it be expunged from the petitioner’ record because it is procedurally and administratively incorrect. The Board agreed with the petitioner, the report is adverse and reporting officials should have provided the petitioner an opportunity to comment.

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

b.	Regarding the report covering the period 20050509 to 20050630 (DC), the petitioner argues that the reporting senior did not have sufficient time to observe him; therefore, he should not have completed an observed report on him. Per paragraph 3006.3 of reference (b), “For periods of 89 days or less, the RSs may submit an observed report if in their judgment, they possess sufficient observation and the basis of the observation results in meaningful personal contact with the MRO; the information provided to the CMC is significant and provides a fair assessment of the MRO.” The Board found that the petitioner was relieved for cause because he failed to consistently make his assigned monthly net new contract mission. They also found that the report was not used as a disciplinary tool. The Board found that the petitioner acknowledged his shortcomings in his rebuttal statement and took responsibility for failures associated with the relief. Therefore, the Board found that it was appropriate for reporting officials to complete the report because they were documenting a significant event.

4.	The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness report, covering the period 20050509 to	20050630 (DC), should remain a part official military record. As indicated in paragrap 3(a) of this letter, the Board directed that the report covering the period 20040601 to 20050509 (CH) be expunged from the official record.

5.	The case is forwarded for final action.

Colonel, U.S. Marine Corps
Deputy Director
Personnel Management Division
Manpower and Reserve Affairs
                  Department
By direction of the Commandant
of the Marine Corps

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VA 22134-5103

IN REPLY REFER TO:
											1600
											MMOA- 4
											18 Aug 06

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

Ref:	(a) NMER Request for Advisory Opinion in the case  8 Aug 06

	1.	Recommend disapproval of request for removal of his failure of selection.

2. 	Per the reference, we reviewed	record and petition. He failed selection on the FY07 USMC Lieutenant Colonel Selection Board. Subsequently, he petitioned the Performance Evaluation Review Board (PERB) to remove CH report dated 20040601 to 20050509 and DC report dated 20050509 to 20050630. XXXX also requested removal of his failure of selection.

3.	The PERB concluded on 18 Jul 06 in XXXX case that CH report dated 20040601 to 20050509 is administratively and procedurally incorrect as written and filed and directed that the report be expunged from his official record. However, the PERB concluded that DC report dated 20050509 to 20050630 is administratively and procedurally correct and should remain a part XXXX official record. Although removal of the petitioned CH resort does significantly improve the competitiveness record, we believe because the DC report is an adverse report covering the period when XXXX was relieved of command as Recruiting Station Commanding Officer his record still contains significant competitive jeopardy that does not warrant the removal of his failure of selection. Therefore, we recommend disapproval of his request for removal of his failure of selection.

4.	Point of contact is Lieutenant Colonel ,  (703) 784-9281.

Lieutenant Colonel, USMC
Head, Officer Counseling and
Evaluation Section
Personnel Management Division