Last saved by: terry.bynum

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

BJG
Docket No: 2602-07
5 April 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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 5 April 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 report of the Headquarters Marine Corps Performance Evaluation Review Board (PERB), dated 5 March 2007, a copy of which is attached.

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 report of the PERB. The supporting statements you provided did not convince the Board the contested fitness report was in any way unwarranted or unfair. The Board was unable to find the reporting officials lacked sufficient observation to render a valid appraisal of your performance, noting observation need not be direct. The Board was likewise unable to find the command was predisposed to
effecting your relief for cause. Finally, the Board noted you acknowledge having been permitted to review four of the 15 statements of students questioned in your case, and it found no requirement that you be granted access to all of them. 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,

Enclosure

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

IN REPLY REFER TO:

1610
MMER/ PERB
1 APR 2007

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)    DD Form 149 of 29 Sep 06
(b)	MCO P1610.7E w/Ch 1-9
(c)	Manual of the Judge Advocate General (JAGMAN)

1.	Per MCO 1610.llC, the Performance Evaluation Review Board, with three members present, met on 28 February 2007 to consider petition contained in reference (a) Removal of the fitness report for the period 20050805 to 20051026 (CD) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends the adversity of the report was based on hearsay statements of 15 students; he received no formal counseling from the reporting senior; he implies the report is improper, since it was returned by the third officer sighter for correction; and the report is unwarranted because of his excellent performance as AMOI prior to this report. He also contends that he was not made aware of “an in-house investigation” documentation or able to view all the student hearsay statements made against him.

3.	In its proceedings, the PERB concluded that the report covering the period 20050805 to 20051026 (CD) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:

a.	The Board found that the petitioner was relieved for cause because the reporting officials lost trust and confidence in his leadership and judgment as a result of questionable incidents involving NROTC students that surfaced during the reporting period. The Board also found that there was not anything more than a preliminary inquiry conducted. Per Chapter II (Administrative Investigations) of reference (c), commanders

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

may conduct a preliminary inquiry personally or through designees. The inquiry may be accomplished in any manner considered sufficient. A preliminary inquiry is not a formal investigation to determine violations under the Uniformed Code of Military Justice (UCMJ), therefore the rules of hearsay evidence do not apply.

b.	The Board also found that the petitioner’s contention that he was not formally counseled and was blindsided by all this adversity is unfounded. The Board found that that the petitioner clearly states in the first paragraph of page 1 of 4 to his rebuttal, that the reporting senior,  and himself had daily conversations on the day’s events and accomplishments. He goes on to state, “All the events that have been brought to my attention through the student statements were in fact discussed as a part of our conversations.”

c.	The Board also concluded that the petitioner’s prior highly satisfactory performance in the AMOI billet, and his efforts and accomplishments at CONTRAMIND West summer training were duly noted in the three reports prior to this reporting period. That highly qualified performance neither denies nor invalidates the adversity that surfaced and was uncovered during this reporting period. His conduct during this reporting period has no affect on the other reporting periods.

d.	Per paragraph 5005 of reference (b), the third officer sighter had an obligation to ensure all inconsistencies and disagreements were addressed and the report was submitted in the spirit and intent of reference (b). The Board concluded that the third officer sighter placed the report and the petitioner’s rebuttals in perspective. Therefore, the report is procedurally correct.

4.	The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness report covering the period 20050805 to 20051026 (çD) should remain a part of official military record.

5. The case is forwarded for final action.

Chairperson, Performance
Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps