D E P A R T M E N T  O F  T H E  N A V Y  
BOAR0 FOR CORRECTION OF NAVAL RECORDS 

2 NAW ANNEX 

WASHINOTON DC  103745100 

BIG 
Docket  No:  8224-98 
4 June  1999 

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  3, June  1999.  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) in 
your case, dated 20 November  1998, the undated advisory opinion from the HQMC 
Promotion Branch (MMPR-I), and the advisory opinion from the HQMC  Officer Career 
Counseling and Evaluation Section, Officer Assignment Branch, Personnel Management 
Division (MMOA-4),  dated  18 December  1998, copies of  which are attached.  They also 
considered your rebuttal letters dated 7 December  1998 and 28 May 1999. 

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. 

The Board  substantially concurred with the comments contained in  the report of  the PERB in 
finding that no correction of  your  fitness report record was warranted. 

Specifically regarding your contested fitness report for 25 January to 31 July  1997, the Board 
was unable to find that your  reporting senior's observation was infrequent, noting that item  18 
is marked  to show that he had  "daily" observation, and  further noting that observation need 
not  be direct.  They likewise were unable to find that your reporting senior did  not counsel 
you  about your performance before you  received your  fitness report at issue.  They could not 
find that your  reviewing officer erred by  stating that your  reporting senior provided  you 

"close guidance and supervision."  In any event, they generally do not grant relief on the 
basis of an alleged absence of counseling, since counseling takes many  forms, so the recipient 
may  not recognize it as such when it is provided.  They were not persuaded  that you 
necessarily should have bem rated ahead of your peers whose performance left something to 
be desired.  They were unable to find that the narrative of your contested report omitted any 
accomplishments so significant that they should have been  mentioned specifically.  Finally, 
they were unable to find that your reviewing officer lacked adequate observation of  your 
performance to do his job  properly, noting that he indicated he had  "sufficient" opportunity to 
observe, and again noting that observation need not be direct. 

Concerning the contested reviewing officer comments on your  fibless report for  1 August to 
16 December  1997, the Board found you  are correct that these comments impeach the validity 
of your reporting senior's appraisal of your performance; and they concluded that instead of 
commenting to the effect that your reporting senior had  improperly ranked two different 
captains number two in your peer group, he should have taken action to correct this error. 
However, this did not persuade them that the content of the reviewing officer's comments was 
erroneous or unjust, such that their removal could be supported. 

The Board agreed with the advisory opinion from MMOA-4,  except they noted  that paragraph 
4c understates the number of  fitness reports in  your  Military Occupational Specialty the Fiscal 
Year (FY)  1999 Major Selection Board would  have had,  without your  contested fitness report 
for 25 January to 31 July  1997.  Because they  found no defect in your performance record, 
and they concurred with the MMOA-4 opinion concerning the issue of your missing 
commendatory material before the FY 1999 promotion board, they found that your failures by 
the FY  1999 and 2000 Major Selection Boards should stand.  Since they  found insufficient 
basis to remove your failures of selection for promotion, they  had no  grounds to recommend 
granting you  a special selection board, or setting aside action to effect your involuntary 
discharge from the Regular Marine Corps. 

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, 

W. DEAN PFEIFFER 
Executive Director 

Enclosures 

DEPARTMENT OF THE NAVY 

H t   JUARTLRS  UNITED STATES MARINE CORPS 

3280 RUSSELL ROAD 

QUANTICO,  VIRGINIA  2 2 1 3 4 . s 1 0 3  

IN REPLY REFER TO: 
1610 
MMER/PERB 
NOV  2 3  1998 
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 
CAPTAIN 

USMC 

Ref: 

(a) Captai- 
( b )   MCO P1610.7D w/Ch 1-2 
(c) MCO P1610.7D w/Ch 1-4 

DD Form 149 of 26 Aug 98 

1.  Per MCO 1610.11B, the Performance Evaluation Review Board, 
with three members present, met on 13 November 1998 to consider 
captain 
petition contained in reference  (a).  Action as 
indicated was requested on the following fitness reports: 
a.  Report A -  970125 to 970731 (AN) -- Removal in its 

entirety.  Reference (b) applies 

b.  Report B -  970801 to 971216 (CD) --  Removal of the 

Reviewing Officer's  comments.  Reference  (c) applies 

This, he believes is evidenced by the mark of 

2.  The petitioner contends that Report A is substantially 
inaccurate, erroneous, and unjust due to bias and prejudice on 
the part of his Reporting Senior/Battalion Commander  (Lieutenant 
Colonel". 
"excellent" in Item 149 (judgment), the "marginal" comment in the 
Section C narrative, and his ranking as "six of six" in the 
Reporting Senior's  Certification.+ Along with the allegation of 
bias, the petitioner states that he was never counseled by 
Lieutenant colonel- 
share any "performance  expectations",  and failed to provide 
supervision and guidance.  Concerning the petitioner's  challenge 
to the Reviewing Officer's  remarks appended to Report B, it is 
his position that Colone1"id 
opportunity to observe his performance and had vir$ually  no 
contact with him during the three weeks colon-unctioned 
as his Reviewing Officer.  To support his appeal, the petitio 

never set any goals for him, did not 

not have sufficient 

es his own statement, advocacy letters from Major 

a copy of a Formal Safety Investigation Report, d B  

and 
accomplishments during the period covered by Report A,  and other 
documentation which he believes will support his arguments. 

- 

3.  In its proceedings, the PERB concluded that the reports are 
LVLII dLU~~~nisti-dt~tl&iy 
written and filed.  The following is offered as relevant: 

r'  as 

lly 

L A " ' ' - L C  

1 

1 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

a.  Notwithstanding the documentation furnished with 

reference  (a), the Board is simply not convinced or otherwise 
persuaded that Report A  is anything other than a fair and 
objective evaluation of the petitioner's  demonstrated 
performance/capabilities  during that finite period.  The letters 
from Major-and- 
while supportive, are from two 
officers who w'ere not observing the petitioner from the per- 
spective of a Reporting Senior. 
the responsibilities that Lieutenant Colon 
petitioner's  Reporting Senior and 

b.  ~a j-recollections 

(a) )  of Lieutenant colon- 
the petitioner's personal appearance does not substantiate any 
preconceived prejudice.  Certainly marks of "outstanding" in 
Items 14b  (personal appearance) and 14c (military presence) belie 
any prejudice in those areas. 

(enclosure (4) to reference 
initial impressions regarding 

c.  The petitioner's  disclaimer to guidance/supervision 

and his allegation that Lieutenant Colone-ad 
"infrequent" observation of his performance are both unsub- 
stantiated.  By the very inherent nature of the relationship 
between a Battalion Commander and Company Commander, signif- 
icantly more than "infrequent" observation would occur. 

only 

d.  That a fellow Company Commander, who was rated higher in 

Item 15b on Report A, was relieved for cause some three months 
subsequent to submission of the report is not germane to the 
petitioner's  evaluation.  Nothing included with reference  (a) 
substantiates that the Reporting Senior could have anticipated 
such a subsequent action.  C a p t a i w  another Company 
Commander whose misfortune it was being wounded on a grenade 
range, has absolutely no bearing on Report A.  The bottom line 
here is that the petitioner does not substantiate that Report A 
is inaccurate, unjust, or biased. 

e.  Report B was a resubmission, so stated in the narrative 

comments.  The evaluation is totally "outstanding" and the 
petitioner voices no complaint whatsoever about Lieutenant 
C o l o n e l ~ a s s e s s m e n t .  Curiously, the supposed prejudice 
that existed in Report A has now disappeared. 

f.  The Reviewing Officer for Report B clearly indicated for 
& ?   -!  : - - :-tic. .-  . .  This in no w ~ y  t o n l r ~ d i c t s  his 

the period in question that he did not have sufficient oppor- 
tunity 1-0 , 
previously stated position on the degree of observation for 

C -  1 ‘v'= 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

Report A.  Since each report is for a finite period  observation 
circumstances may understandably change.  colon- 
comments on Report B are administrative in explaining the late 
submission of the report and how the Reporting Senior may have 
erred in rating two Captains as "two of six."  None of that 
invalidates his comments. 

4.  The Board's  opinion, based on deliberation and secret ballot 
vote, is that Report A should remain a part of Captain- 
official military record, and that Report B should remain as 
configured. 

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 

3200 RUSSELL  ROAD 

QUANTICO,  VIRGINIA  22 134-5 103 

IN REPLY REFER TQ 
1412/1 
MMPR- 1 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

CASE OF CAPTAIN- 
SMC 

Ref:  (a) Capta-m 

ltr of 26 Aug 98 

(b) SECNAVINST l4Ol.lB 

1.  Captain 
application for Correction of 
Naval R e c o r d l r e n c e  (a) requested a Special 
Selection Board and removal of passover. 

.-. 

2.  Per reference  (b) capt-uld 
Selection Board if prejudicial error occurred, which would 
adversely affect his opportunity for a fair chance to compete for 
promotion to the next higher grade. 

only rate a Special 

3.  Because the Performance Evaluation Board  (PERB) has declined 
to remove the fitness report in question, there is no prejudicial 
error and therefore no basis for a Special Selection Board or 
deletion of passover. 

4.  The final processing of Captai 
request for a Special Selection Bo 
taken by the ~ o k - d  for Correction of Naval Records. 

By direction of 
the Commandant of the Marinc C 2 r p s  

motion Branch 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

IN REPLY REFER TO: 

1600 
MMOA- 4 
18 Dec 98 

DEPARTMENT OF T H E  NAVY 

HEADQUARTERS  UNITED STATES MARINE CORPS 

~ ~ ( I O R U S S L L L ~ ~ O A D  
QUANTICO,  VIRGINIA  22 1 3 4 - S  103 

BCNR PETITION FOR CAPTAI - USMC 

NAVAL  RECORDS 

Subj : 

R e f :  

Captain 

USMC 

1.  Recommend disapproval of captai- 
of his failure of selection and his request for a Special 
Selection Board  (SSB) . 

request for removal 

and his 

2.  Per the reference, we reviewed capt-record 
petition.  He failed selection on the FY99 USMC Major Selection 
Board.  Subsequently, he unsuccessfully petitioned the Performance 
Evaluation Review Board  (PERB) for removal of the fitness report 
for the period 970125-970731 and for removal of the Reviewing 
Officer's  comments from the report for the period 970801-971218. 
He believes that the presence of the reports and the absence of 
certain commendatory material previously in the Official Military 
Personnel File  (OMPF) prevented his record from receiving a 
substantially complete and fair evaluation by the Board.  We note, 
the report for 970801-971218 was not available for the Board's 
consideration and do not consider it relevant to C a p t a w  
failure of selection.  He requests removal of his failure of 
selection and a SSB. 

3.  In our opinion, the fitlrct=ss rt  rt and the absent 
correspondence present some jeopardy to the record. 

a.  The fitness report for the period of 970125 to 970731. 

This report clearly contains serious jeopardy to the 
competitiveness of the record.  It documents his performance in a 
significant billet for his rank and Military Occupational 
Specialty (MOS).  He receives a less competitive Section B mark in 
Judgement and is ranked below all other officers evaluated on that 
report.  Furthermore, his performance is ranked below the other 
officers even though he is senior in grade and billet to all but 
one of them. 

b.  Corrcspondrnce not aontained in the C4rlPF.  We believe the 

absence of correspondence previously contained in the OMPF 

Subj :  BCNR PETITION FOR CAPTAIN 

-SMC 

presents little jeopardy to the competitiveness of the record. 
The MBS contained entries for all the correspondence, providing 
the Board with evidence of his decorations and military education. 

4.  However, we note the folldwing areas that may have contributed 
to his failure of selection, even with a favorable decision by the 
PERB : 

a.  Section B marks.  ~ a p t a i m m ~ l r r e c o r d  contains trends 

of less competitive markings in Administrative Duties and Handling 
Enlisted  Personnel. 

and Distribution.  Captain- 
having 13 officers ranked above him and 11 below, 

b.  Value 
Distribution, 
appears less 
captain he has 10 officers ranked above him and 4 below, 
indicating an even less competitive position relative to his 
peers. 

competitive than his peers.  Furthermore, a s  a 

overall Value and 

c.  MOS credibility.  We believe  apta aim record would 
appear less competitive withouk the petitioned report because it 
omits his performance in a critical billet for his rank and MOS. 
The Board would be left with'only  two reports, documenting his 
performance as a lieutenant in a platoon commanders billet, to 
compare with his peers.  We believe this would provide serious 
jeopardy to the competitiveness of the record. 

- 

- 

5.  In summary, the fitness report and the absent correspondence 
present some jeopardy to the record.  However, we believe that 
even with favorable PERB action there is sufficent jeopardy in the 
record to contribute to captain1- 
T h e r e f  ore, we rci-inmend  disapprszval  of Capt ai 
removal of his failure of selection and his r*a 

failure of selection. 

e q ~ i e c t :  for 

SSB. 

~ e a d ,  Officer Career counseling and 
Evaluation Section 
Officer Assignment Branch 
Personnel Management Division 

hob