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 ANNEX 

WASHINGTON. D.C. 20370-5100 

BJG 
Docket  No:  1983-99 
15 April  1999 

Dear Staff sergeant- 

This is in  reference to  your application  for  correction of  your  naval  record  pursuant  to  the 
provisions of  title  10, 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  8 April  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 
18 March  1999, a copy of  which  is attached.  They also considered your  rebuttal  letter dated 
29 March  1999 with  enclosures. 

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  subsmiidly c;oncmmA with  the cvrlirlurlts contained 
in  the report of  the PERB. 

The Board  found one of  the provisions you  cited, Marine Corps Order  (MCO) P1610.7D, 
paragraph 2007.6d,  is inapplicable, since this order was effective  1  April  1995, while your 
contested  fitness report ended  13 June  1994.  The applicable directive, MCO  P I6lO.7C1 
paragraph 2006.6.a, provides for a one-time modification by  the commanding general of  the 
reporting chain  when  "unusual operational circumstances dictate. "  However, they  were 
unable to find  such circumstances prevailed in  your case.  They  were not  persuaded  that your 
reporting senior (RS) was biased  against you. 

The Board found another provision you  cited, MCO P1610.7D,  paragraph  3009.2, is 
inapplicable for the reason  stated above.  The applicable ,directive, MCO  P 16 10.7C, 
paragraph  3004.7.a(1), authorizes "DC" (directed by  the Commandant of  the  Marine Corps 

(CMC))  fitness reports in  cases where the  RS  "...believes that  a single.. .adverse action  by  the 
MRO [Marine reported on] is so significant that  it  should  be  reported  immediately  to  the 
[CMC]."  They were not  convinced that your  RS  was  incorrect in  finding that  the  action  for 
which you  received  your civil conviction  warranted submission of  a "DC" report.  They 
found no requirement that  the incident cited  in  the contested  report  be  alcohol-related to 
justify  a "DC" report. 

The Board  was  unable to  find  that  your  contested  fitness report  was  used  as a disciplinary 
tool,  a lever to exert influence, or a counseling document.  They  were likewise unable to  find 
that  you  were not  counseled on  your  perceived  deficiencies.  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. 

The applicable directive, MCO P16lO.7C, paragraph 5OOl.2.g(l), states that an  "[RS]  must 
never damn  with  faint praise.. ."  However,  the Board  found  no  violation of  this  rule in  your 
RS's comment that you  "...can effectively set the example for junior  Marines when  asked  to 
do so. " 

The Board  was  unable to  find  that  your  RS  was  incorrect in  stating that  you  had  "lapses of 
judgment  outside of  work, " despite your  denial of  such  lapses. 

The Board  found  your  having  stated, in  your  rebuttal  to  the  contested  fitness report, that  you 
were involved in  a traffic accident, whereas  your  RS  stated  that  you  had  a  "traffic arrest," 
was not a material  factual disagreement requiring reviewing officer adjudication. 

If  you  are correct that the  "civil conviction" in  question did  not  meet  the definition of  that 
term  in  MCO P1610.7C, paragraph  4006.7.a, which  addresses when  to  mark  item  17c 
(disciplinary action)  "yes," the Board  found  the proper  remedy  in  the event of  an  error  would 
be to change the  mark  in  item  17c from  "yes" to  "no".  They  found  that  this  would  not  be  a 
material corrective action  in  an  otherwise adverse report  which  properly  mentions a civil 
conviction. 

Finally, the Board  was unable to  find  the officer who acted as your  third  sighting officer was 
not  in  your  normal  fitness reporting chain, or  if  he were not  in  the  normal chain, that  he 
acted without proper  authority. 

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 

Enclosure 

EPARTMENT OF T H E  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 

3 2 8 0 R U S S E L L R O A D  

QUANTICO,  V I R G I N I A   2 2 1 3 4 - 5  1 0 3  

IN REPLY  R E F E R  TO: 

1610 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj : 

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 
ADVISO 
SERGEA 

SE OF STAFF 

Ref: 

(a) SS~~.-DD 
(b) MCO ~ 1 m - 0 . 7 ~  

w/Ch 1-6 

Form 149 of 14 Dec 98 

1.  Per MCO 1610.11Cf the Performance Evaluation Review Board, 
with thre 
Sergeant 
Removal 
(DC) was requested.  ~eference (b) is the performance evaluation 
directive governing submission of the report. 

petition contained in reference  (a). 
report for the period 931222 to 940613 

ent, met on 9 March 1999 to consider Staff 

2.  The petitioner contends the report contains substantive 
inaccuracies and represents an injustice.  It is the petitioner's 
claim that during the period covered by the report, the 
Commanding Officer  (Reviewing Officer) was also involved in an 
alcohol-related incident that was not reported to the Marine 
Corps Security Force Battalion Commander.  Instead, it was 
reported to the operational commander  (Commander, U.  S. Naval 
Activities, United Kingdom).  He states that he surfaced this 
issue to the Executive Officer  (Reporting Senior), but was led to 
believe that his behavior toward the Commanding Officer was 
tantamount to jeopardizing that officer's  career.  The petitioner 
cites several provisions of reference  (b) in arguing for 
elimination of the report, to include that portion which states 
that fitness reports will not be used as disciplinary tools. 

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.  Regardless of the petitioner's  disagreement with the 

methods used to obtain a sufficient specimen for a breathalyzer, 
the fact remains that he was the subject of a civilian conviction 
during the reporting period.  That is an uncontroverted matter of 
fact and nothing furnished with reference  (a) disputes that 
issue.  In this regard, the Board stresses that the military must 
follow the laws of the country in which they are stationed.  This 
is precisely what occurred in the petitioner's  case. 

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

ADVISO 
SERGEA 

ASE OF STAFF 

USMC 

b.  The petitioner's  statement that the Commanding Officer 

had a DUI during the reporting period does not change the facts 
pertaining to his own situation.  The Board notes that there 
are no third-party statements to corroborate either that allega- 
tion or the contention of reprisal.  In fact, in his statement 
appended to reference (a), the petitioner specifically stated 
that the allegation of reprisal was not substantiated. 

c.  To justify the deletion or amendment of a fitness report, 

evidence of probable error or injustice should be produced. 
Notwithstanding the petitioner's statement, there is simply no 
such showing in this case. 

4.  The Board's  opinion, based on deliberation and secret ballot 
vote, is that the contested fitness report should remain a part 
of Staff sergean- 

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