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 NAW ANNEX 

WASHINGTON DC  20370-5100 

SMC 
Docket No:  01131-99 
22 July  1999 

'-- 

USMC 

This is in  reference to  your  application for correction of  your  naval reco'rd pursuant to the 
provisions of  title  10 of  the United  States Code,  section  1552. 

It is noted  that the Commandant of  the Marine Corps (CMC) has removed  the contested 
fitness report for 29 June to 31 October  1994 and  modified the remaining contested report, 
for  1 November  1994 to 24  March  1995, by  changing the entry in  item  17b (whether the 
Marine has been  the subject of  any adverse report from outside the fitness reporting chain) 
from  "Yes" to  "No." 

A three-member panel of  the Board  for Correction of  Naval  Records,  sitting in  executive 
session, considered your application on  22 July  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 Performance Evaluation Review Board  (PERB), dated 
10 February  1999, 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 warranting further correction.  In  this connection, the Board  substantially concurred 
with  the comments contained in the report of  the PERB in  finding that the remaining 
contested fitness report should stand. 

The Board  found no  requirement that the reviewing officer counsel or meet  with  you 
concerning your disagreements with  the remaining contested report.  They found the 
reviewing officer added no new  adverse information, so you  had  no  right to  make a rebuttal 
to his comments.  Finally, your  subsequent more favorable fitness reports did  not persuade 
the Board  that you  deserved a better report for the period in  question. 

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 

Enclosure 

JEPARTMENT OF THE NAVY 

H E A D Q U A R T E R S  U N I T E D  STATES  M A R I N E  CORPS 

3280 R U S S E L L  ROAD 

QUANTICO,  V I R G I N I A   22 1 3 4 - 5  1 0 3  

I N  REPLY  REFER TO: 
1610 
MMER/PERB 
fE/j  1 0  1999 
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 O F .  
GUNNERY SERGEANT 

USMC 

Ref: 

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

DD Form 149 of 31 Oct 98 

1.  Per MCO 1610.11Bf the Performance Evaluation Review Board, 
ent, met on 4 February 1999 to consider 
with three membe 
Gunnery Sergeant 
Removal of the following fitness reports was requested: 

etition contained in reference (a). 

Report B -  941101 to 950324  (TR) 

Reference  (b) is the performance evaluation directive governing 
the submission of both reports. 

2.  The petitioner contends that the reports are unjust and 
unfairly prejudice his promotional opportunities.  With specific 
regard to Report B, the petitioner challenges the mark of "yes" 
in Item 17b and provides his opinion into the manner in which he 
performed his duties, vice the manner in which he was evaluated. 
To support his appeal, he provides his own statement in which he 
narrates his dissatisfaction with the timeliness of submission, 
copies of the reports under consideration, a copy of his Master 
Brief Sheet, extracts from his Service Record Book  (SRB), a copy 
of his rebuttal to Report B, and copies of subsequent appraisals. 

3.  In its proceedings, the PERB concluded that: 

a.  The removal of Report A is warranted and has been 

directed.  The Board emphasizes that they do not challenge the 
"accuracy" of the evaluation, but the fact that as an adverse 
appraisal, it was not properly referred to the petitioner for 
his acknowledgment and the opportunity to append a statement of 
rebuttal.  The age of the report  (four years plus) merits its 
removal vice referral. 

b.  Report B is both administratively correct and 

procedurally complete as written and filed. 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF 
GUNNERY SERGEANT 
SMC 

(1) The original version of Report B never reached this 
Headquarters.  In March 1997, a reconstructed copy was obtained 
and processed.  As an adverse evaluation, the report was cor- 
rectly referred to the petitioner and a rebuttal was attached. 
While the petitioner's  signature date on the rebuttal is 
confusing, he states in reference (a) that he submitted his 
rebuttal four days after signing Item 24. 

(2) The Reviewing Officer completed his review of Report 

B in a timely manner and concurred in the Reporting Senior's 
evaluation.  The report was then third sighted by the Battalion 
Commander without any further comments. 

(3) Despite his claims to the contrary, the petitioner 

fails to substantiate his disclaimer to counseling.  In this 
regard, we specifically note that the Reviewing Officer stated 
that he had been "counseled continuously on his deficiencies." 
The petitioner is mistaken in implying that since he has no 
recorded counseling entries in his Service Record Book, he 
therefore received no performance counseling.  The Board stresses 
that official counseling entries and performance counseling are 
two separate and independent administrative actions.  One is not 
contingent upon the other. 

(4) The entry of "yes"  in Item 17b is considered an 

invalidating error which will be corrected per the Board's 
direction. 

4.  The Board's  opinion, based on deliberation and secret ballot 
t Report B should remain a part of Gunnery Sergeant 
ficial military record.  The limited corrective 

action identified in subparagraph 3b(4) is considered sufficient. 

5.  The case is forwarded for final action. 

 valuation Review Board 
Personnel Management Division 
Manpower and Reserve Affairs 
Department 
By direction of the Commandant 
of the Marine Corps