D E P A R T M E N T  O F  T H E  N A V Y  
BOARD FOR CORRECTION OF NAVAL RECORDS 

2 NAVY A N N U  

WASHINGTON DC  20370-5100 

SMC 
Docket No:  03415-98 
24 May  1999 

From:  Chairman, Board  for Correction of  Naval  Records 
To: 

Secretary of  the Navy 

Ref: 

(a)  Title 10 U.S.C.  1552 

Encl: 

(1)  DD Form  149 dtd  10Apr98 wlattachments 
(2)  Subject's MBS  dtd  28May98 
(3)  HQMC PERB memo dtd  27Ju198 
(4)  Subject's naval record 

1.  Pursuant to the provisions of  reference (a), Subject, hereinafter referred  to as Petitioner, 
filed written  application, enclosure (I), with  this Board  requesting, in  effect, that the 
applicable naval  record  be corrected by  removing therefrom the fitness report for  1 January to 
22  April  1994.  A copy of  this report is at Tab A. 

2.  The Board, consisting of  Messrs.  Pauling, Schultz and  Exnicios, reviewed Petitioner's 
allegations of  error and  injustice on  20 May  1999, 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, 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 which 

were available under existing law and  regulations within  the Department of  the Navy. 

b.  The contested report, which  covers only four months, was  submitted on  the occasion 
of  Petitioner's transfer.  The reporting senior signed the report on  18 November  1994, some 
seven months after the reporting period  had  ended on  22  April  1994.  The report documents 
Petitioner's performance in  his current grade of  staff  sergeant (pay grade E-6).  It records his 
primary duty as maintenance chief, and  marks him  "NO" (not observed) in  item  13b 
("additional duties").  Item  18 reflects the report was based  on  "daily" observation. 

c.  The report at issue rates Petitioner  "BA" (below average) in  items  13e ("handling 
enlisted personnel"),  14f ("initiative"), and  14g ("judgment"); " AV"  (weragc) in  items  14j 

("leadership") and  14n ("growth potential");  " AA"  (above average) in  items  14c ("military 
presence") and  14i ("force"); "EX" (excellent) in  items  13a ("regular duties"),  13f ("training 
personnel") and  14d ("attention to duty"); and  "OS" (outstanding) in  items  13c 
("administrative duties"),  14b ("personal appearance"), 14e ("cooperation"), 14k ("loyalty"), 
141 ("personal relations"), and  14m ("economy of  management").  In  item  15 ("general value 
to the service"), Petitioner is marked  "AA" with  three staff sergeants above him  (one "EX" to 
"0s" and  two  "OS"), and none with  or below him. 
requirements of  service in  war, indicate your  attitude toward  having this Marine under  your 
command"), the reporting senior indicates "Prefer Not  [to have]."  Item  19 ("qualified for 
promotion") is marked  "No."  Two blocks in  item 21  ("reserved for future use") are marked. 
The report is per  se  adverse by  virtue of  the three "BA"  marks, the mark of  "Prefer Not"  in 
item  16, and  the mark of  "No" in  item  19. 

In  item  16 ("considering the 

d.  The reporting senior's comments are as follows: 

[Petitioner] has performed  exceptionally well when  closely supervised but  has 
not  made expected improvements in  the areas of  supervision of junior  Marines, 
initiative and judgment.  Technically proficient in  his MOS  [military occupational 
specialty],  [Petitioner] has the capability of  performing at greater levels of 
responsibility.  Based  on  my estimate of  this Marine's potential, I recommend 
that he  not be promoted  with  his contemporaries. 

e.  Petitioner submitted a rebuttal dated  29 November  1994 (copy at Tab A),  in  which 

he asserts that  for three months of  the reporting period, he filled not  only the billet of 
maintenance chief, but  also the billet of  communications chief, a billet calling for a master 
sergeant (pay grade E-8).  He challenges his three "BA" and  two  "AA" marks, asserting 
various accomplishments.  In  this connection, he  says he coordinated the daily activities for 
the entire platoon  with  no  notice that his performance was  not  acceptable.  He concedes that 
the reporting  senior once counseled him  for poor judgment  while in  the field, but  he says he 
"made the necessary corrections" and  that the reporting senior "was satisfied with the 
adjustments [he] had  made."  He concludes with  the opinion that  "This report is a reflection 
of  a difference in  leadership styles between  [Petitioner] and  [his] reporting senior." 

f.  The reviewing officer's certification on  the contested fitness report is dated 

31 January  1995.  He indicated he had  had  sufficient opportunity to observe Petitioner, and 
that  he concurred with  the mark  and  peer  ranking in  item  15.  He also gave the following 
comments responding to Petitioner's rebuttal: 

I have personally  observed and  have been  made aware of  this Marine's conduct. 
[Petitioner] has been  counselled several times concerning his deficiencies by  his 
Company Commander and  Company  First Sergeant both  verbally  and  in  writing. 
While technically proficient and at times excellent, his overall performance during 
this period  has not  been  that expected of  a Marine Staff-Noncommissioned Officer. 
I am  confident of  the accuracy of  this report, but do not  agree with  the RO [reviewing 

officer] [sicl's comments that he  "should not be promoted  with  his contemporaries" 
based  upon  the short duration of  this reporting period. 

The applicable directive governing fitness reports,  Marine Corps Order (MCO) P16 lO.X, in 
paragraph 5004.1,  includes the following: 

In  the event the MRO  [Marine reported on] has attached a statement which 
disagrees with  the RS  [reporting senior] as to matters of  fact, the REVO 
[reviewing officer] will  take action to resolve inconsistencies and  disagreements 
by  indicating on  a Standard Addendum Page actions taken  and findings of  fact. 
When  the MRO's statement adds new  information that was  [not] previously 
addressed in  the RS's comments, the REVO will take action to determine the 
validity of  the new  information, and on  the Standard Addendum  Page indicate 
actions taken and  findings. 

g.  Petitioner also submitted a rebuttal, dated 29 March  1995 (copy at Tab A), to the 

reviewing  officer's comments.  He asserts that the reviewing officer's personal observations 
of  his conduct were infrequent.  Concerning the comments to the effect that he had  been 
counseled, he  says some of  the counselings were "positive in  nature and  centered around  [his] 
improvements in  areas deemed  necessary by  [his] Reporting Senior."  He  says the company 
first sergeant never counseled him  in  writing.  He concludes by  stating his performance 
during this period was no different from that previously  reported by  his reporting senior, but 
that he was  transferred and received the adverse report in  question "because the Reporting 
Senior strongly disagreed with  some judgment  calls [Petitioner] made during this reporting 
period. " 

h.  The third  sighting officer, the commanding general, reviewed the report at issue on 
25 April  1995 (copy at Tab A),  over a year after the end  of  the reporting period.  He states 
the reviewing officer, as the battalion commander during the entire four-month period,  had 
sufficient observation.  According to the third  sighting officer, that some of  the counseling 
Petitioner received  may  have been positive "is of  no consequence."  He says that while 
Petitioner is correct that the company first sergeant counseled him  only orally, the company 
commander counr;elcd him both  orally and in  writing, so the reviewing officer's comment on 
this matter was accurate.  He further states that Petitioner's assertion the report was based  on 
some judgment  calls Petitioner made  "is in  no  way  inconsistent with  the Reviewing Officer's 
comment concerning [Petitioner's] standard of  performance. "  Finally, he finds the report 
"meets both  the spirit and  the letter of  Marine Corps regulations and  sets forth, without 
prejudice, the honestly held  views of  [Petitioner], the Reporting Senior and  the Reviewing 
Officer. " 

i.  Petitioner's immediately preceding fitness report from the same reporting senior and 
same command for 30 June to  31 December  1993, a copy of  which  is at his enclosure (9) to 
his application, assigned him  "EX" to  "0s" marks.  It showed his primary  duty as 
communications chief.  The reporting  senior's comments were as follows: 

Currently filling in  as Communications Chief, a MSGT  [master sergeantl's billet. 
As  Maintenance Chief, consistently provides timely and thorough reports to  senior 
commands.  TECHNICALLY PROFICIENT; has consistently maintained 
communications electronics equipment at 95% or better enabling battalion t6 
effect reliable command and control despite drastic equipment shortages.  Has 
improved in  areas of  leadership and  interaction with  subordinates.  Seeks self- 
improvement and  strives to attain all command goals and  objectives.  Has 
completed necessary ResidenVNon-resident PME [professional military education]. 
Promote when  eligible. 

Petitioner's Master Brief Sheet (MBS), at enclosure (2), shows the contested report stands out 
as the only adverse report he has ever received. 

j. 

In  his application, Petitioner alleges that the contested fitness report is inaccurate, 
unjust and contains numerous procedural errors.  He believes the report was  filed without 
adhering to established policies as outlined  in  MCO P1610.7C.  He complains that the report 
does not  mention  that in  addition to his primary  staff sergeant billet as a maintenance chief, 
he filled the billet of  communications chief, a master sergeant's billet.  He notes that the 
report was  submitted seven months after the ending date of  the period, and  states that during 
the seven-month wait  for the report, he  "raised a lot of  fuss at [his] old command."  While he 
maintains he was at no  time unprofessional when  speaking to the reporting senior of  record, 
he  says he was very insistent; and  that after numerous attempts to resolve the problem,  he 
informed the reporting  senior that if  he did  not receive his fitness report soon, he would  have 
to inform his chain of  command, who  would  certainly take action.  He asserts "This made her 
angry."  Petitioner states that one month  later, he had  not heard  from the reporting senior, so 
he informed his command, and they called the reporting  senior's superior.  He  says a few 
days after he had  informed his command, the reporting  senior called Petitioner to tell him  to 
come sign the fitness report, and  then  hung  up  on  him.  Petitioner believes his actions in 
attempting to obtain a report for the period  in  question caused the reporting senior 
embarrassment, resulting in  the adverse report at issue. 

k.  Petitioner contends that the report in  question was  submitted to influence his 

promotion board  and  harm  his career, and to scrve an  impropcr purpusc as a counseling 
document.  He feels the report evidences an  unwarranted decline from the previous report by 
the same reporting senior.  He asserts the contested report reflects the reporting senior's own 
precepts; that her  expectations of  him  were unreasonable; and  that the report violates the  "by 
grade" guidance of  MCO  P1610.7C.  He contends that the reporting senior's narrative was 
not performance-oriented; and that her  comments did  not  meet  the requirement of  the fitness 
report order to explain the adverse marks.  He argues that the marks are inconsistent among 
themselves, and that the marks and  comments are inconsistent.  He alleges he was  marked 
down  in  item  14n to justify  the low  marks in  other areas; that his mark  in  item  15 improperly 
resulted  from averaging the marks in  items  13 and  14; and that his item  15 mark was 
improperly influenced by  the mark in  item  16.  He contends that the reporting senior erred by 
marking  item  18 to  show the report was  based  on  "daily" rather than  "frequent" observation. 

He notes that the fitness report order stipulates item 21 is to be left blank,  yet  marks appear 
there.  He objects that the comments of  both  the reporting 'senior and reviewing officer are 
vague and  merely restate the marks.  Finally, he asserts that the reviewing officer did  not 
meet his duty to comment on  the improprieties in  the report, and adjudicate disagreements of 
fact between  Petitioner and the reporting senior. 

1.  Enclosure (3) is the report of  the Headquarters Marine Corps (HQMC) Performance 
Evaluation Review Board  (PERB) in  Petitioner's case.  The report reflects the PERB decision 
to deny relief.  PERB states that while late submission of  fitness reports is neither condoned 
nor  acceptable practice, this does not invalidate an otherwise administratively correct 
performance evaluation.  They say Petitioner's belief  that he received an adverse report 
because he prodded the reporting senior to  submit it is  "simply not grounded in  fact" and is 
"merely the petitioner's speculation."  They  state he has provided no  documentary evidence to 
show he simultaneously filled the positions of  communications chief and  maintenance chief, or 
that he spent any prolonged periods functioning in  the billet of  communications chief, which 
is a requirement for a mark other than  "not observed" in  item  13b ("additional duties"). 
PERB says Petitioner does not provide any  substantive evidence to prove his contentions of 
violations of  guidance in  the fitness report order.  They state that the three  "BA" marks are 
adequately supported by  the comment that Petitioner  "has not  made expected improvements in 
the areas of  supervision of junior  Marines, initiative and judgment."  PERB states that 
Petitioner's opinion does not negate the three independent assessments of  the reporting 
officials involved.  They  state the supporting letters at Petitioner's enclosures (10) and  (1 1) of 
his application are not germane, since they  relate to a time after the pertinent period.  Finally, 
they  note that the marks in  item 21 were placed  there by  HQMC  to generate administrative 
entries into the Automated Fitness Report System. 

CONCLUSION: 

Upon  review and consideration of  all the evidence of  record, and  notwithstanding the contents 
of enclosure (3), the Board  finds the existence of  an  injustice warranting removal of the 
contested report. 

The Board  particularly notes the short period of  the report; the circumstances surrounding its 
late submission; the failure of  the reporting officials to provide specific examples of 
unsatisfactory performance as justification  for the adverse marks; the favorable evaluation 
from the same reporting  senior in  Petitioner's immediately preceding fitness report; the 
inconsistency of  the adverse report at issue with  all the other reports in  Petitioner's record, 
before and after; the reviewing officer's having disagreed with  the reporting senior by  stating 
he felt Petitioner deserved to be marked  as qualified for promotion; and  the reviewing 
officer's failure to address new  information  raised in  Petitioner's rebuttal,  specifically, his 
assertion that he served in  the billet of  communications chief, a master  sergeant's billet, and 
his citation of  various accomplishments.  In  view  of  the above, the Board  recommends the 
following corrective action: 

RECOMMENDATION: 

a.  That Petitioner's naval record be corrected by  removing the following fitness report 

and related material: 

Date of Report 

Reporting Senior 

Period 
From 

of  Report 

To 

b.  That there be inserted in  his naval record a  memorandum in  place of  the removed 

report,  containing appropriate identifying data concerning the report;  that such memorandum 
state that the report has been  removed by order of  the Secretary of  the Navy  in  accordance 
with the provisions of  federal law and may  not be made available to selection boards and 
other reviewing authorities; and that such boards may  not conjecture or draw any inference as 
to the nature of the report. 

c.  That the magnetic tape maintained by  Headquarters Marine Corps be corrected 

accordingly. 

d.  That any material or entries inconsistent with  or relating to the Board's 

recommendation be corrected,  removed or completely expunged from Petitioner's  record and 
that no such entries or material be added to the record  in  the future. 

e.  That any material directed to be removed  from Petitioner's  naval record be returned 

to this Board,  together with a copy of this Report of  Proceedings, for retention  in  a 
confidential file maintained for  such purpose,  with  no cross reference being  made a part of 
Petitioner's naval record. 

It is certified that a quorum was present at the Board's review and deliberations, and that 

4. 
the foregoing is a true and complete record of the Board's proceedings in  the above entitled 
matter. 

ROBERT D.  ZSALMAN 
Recorder 

JONATHAN S.  RUSKIN 
Acting  Recorder 

-4. /I&- 

- 

5.  The foregoing report of the Board is submitted for your review and action. 

Reviewed and approved: 

KAREN S. HEATH 

AU'G 

6  1999 

Principal Deputy Assistant Secretary of the Navy 

(Manpower and Reserve Affairs) 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 NAVY ANNEX 

WASHINGTON, D.C.  20380-1775 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

IN REPLY REFER TO: 
1610 
MMER/PERB 
27 Jul 98 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF STAFF 
SERGEAN 

USMC 

Ref: 

(a) SSg 
(b) MCO P1610.7C w/Ch 1-6 

DD Form 149 of 10 Apr  98 

1.  Per MCO 1610.11B, the Performance Evaluation Review Board, 
with thr 
Sergeant 
of the f 
requested.  Reference  (b) is the performance evaluation directive 
governing submission of the report. 

esent, met on 23 July 1998 to consider Staff 
etition contained in reference  (a).  Removal 

for the period 940101 to 940422 (TR) was 

2.  The petitioner contends the report is inaccurate, unjust, and 
laden with violations of the Performance Evaluation System.  He 
narrates those areas which he believes fail to comply with the 
guidance contained in reference (b) and provides supporting 
statements from Captai 

3.  In its proceedings, the PERB concluded that the report is 
both administratively correct and procedurally complete as 
written and filed.  The following is offered as relevant: 

a.  At the outset, the Board emphasizes that the late sub- 

mission of fitness reports is neither condoned nor an acceptable 
practice.  Such a failing, however, does not serve to invalidate 
an otherwise administratively correct performance evaluation. 
That the petitioner believes the adversity of the report may 
(emphasis added) be attributable to his need to prod the 
Reporting Senior for completion of the evaluation is simply not 
grounded in fact.  It is merely the petitioner's  speculation. 

b.  The petitioner provides absolutely no documentary 

evidence to show that he simultaneously filled the positions of 
Electronic Maintenance Chief and Battalion Communications Chief, 
or that he spent any prolonged periods of time functioning in the 
latter billet  (a requirement for marking Item 13b  (Additional 
Duties) other than "not observed"). 

Sub j :  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF STAFF 
SERGEA 

USMC 

c.  Throughout the 18-page statement appended to reference 
(a), the petitioner arduously cites individual paragraphs from 
the Performance Evaluation System directive that provide guidance 
to reporting officials on how to write fitness reports.  It is 
the petitioner's  opinion  that those officers did not abide by 
the suggested guidance for marking Section B and in developing 
Section C comments.  It further opines that the "below average" 
markings were not adequately justified.  The Board concludes that 
the petitioner does not provide any substantive evidence to prove 
his claims.  The markings of "below average" in the areas of 
"Handling Enlisted Personnel", "Initiative", and "Judgment" are 
discussed in the content that the petitioner ".  .  .  has not made 
expected improvements in the areas of supervision of junior 
Marines, initiative and judgment."  That singular sentence 
verifies and substantiates the markings.  The opinion cited 
in the reference (a) does not negate the three independent 
assessments of the reporting officials involved. 

d.  While the advocacy letters from Captai 
supportive, the Board observes that 

nd CWO-3 
ervation 

itionerrs performance was after the period covered by 

the challenged fitness report.  Hence, their opinions are not 
germane to the issues. 

e.  With specific regard to the petitioner's  challenge to the 

markings in Item 21, the Board points out that none of the 
reporting officials completed those entries.  That action was 
taken by this Headquarters to generate certain administrative 
entries into the Automated Fitness Report System. 

4.  The Board's  opinion, based on deliberation and secret ballot 
vote, is that 
of Staff Serge 

itness report should remain a part 
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