DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

From:
To:

Chairman, Board for Correction of Naval Records
Secretary of the Navy

M:

REVIEW OF NAVAL RECORD

, USMC

Subj 

Ref:

Encl:

MC0 

P1610.7D

(a) Title 10 U.S.C. 1552
0)
(1) DD Form 149 dtd 10 Mar 99 w/attachments
(2) HQMC 
MMER/PERB memo dtd 10 May 99
(3) HQMC RAM-6 memo dtd 15 
(4) Memo for record dtd 6 Aug 99
(5) Subject’s 
(6) Subject’s naval record

lfr dtd 12 Nov 99

Jul99

BJG
Docket No: 3 136-99
3 December 1999

Y

t

.

(l), with this Board requesting, in effect, that the

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed written application, enclosure 
applicable naval record be corrected by removing therefrom the fitness report for
14 April to 31 July 1996. A copy of this report is at Tab A to enclosure (1). Petitioner
further requested, by implication, removal of his failure of selection before the Fiscal Year
(FY) 2000 Reserve Lieutenant Colonel Selection Board, so that he will be considered by the
selection board next convened to consider officers of his category for promotion to the grade
of lieutenant colonel as an officer who has not failed of selection to that grade (his application
included a request that his case be completed before his consideration by the FY 2000
Reserve Lieutenant Colonel Selection Board, which convened on 13 April 1999).

The&at-d, consisting of Messrs. Lippolis, Neuschafer, and Zamesky, reviewed

2.
Petitioner’s allegations of error and injustice on 17 November 1999,‘and pursuant to its
regulations, determined that the limited 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, Petition&- exhausted all administrative remedies which

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

b. Enclosure (1) was filed in a timely manner.

c. The contested fitness report for 14 April to 31 July 1996 (Tab A to enclosure (1)) is

“judgment ”), marked  “AA ” (above average), the third highest. In

an  “EN ” (end of service) report of Petitioner
’s service as a major in the reserve component.
In Section B, items 13 and 14, he was marked 
“OS ” (outstanding), the highest possible, or
“NO ” (not observed) in all areas except items 13a (
“regular duties ”), 14d ( “attention to
duty ”), 14i ( “force ”), 14j ( “leadership ”), 141 ( “personal relations ”), 14m ( “economy of
management ”), and 14n ( “growth potential ”), in which he was marked 
second highest; and 14g (
hit&elf in the  “EX ” block, the
item 15 ( “general value to the service
third highest, with no other officers compared with him. In item 16 (desirability for service
in war), he was marked 
“be glad [to have], ” the second highest. Item 17b was marked
“yes, ” which means Petitioner was the subject of an adverse report from outside the chain of
command.
conviction or military disciplinary action. The Section C comments were generally favorable,
although they included the arguably negative statement that 
“he can quickly solve most
complex communications problems, with little or no supervision,
indisputably derogatory material:

17c was marked  “no,” indicating he was not the subject of any civil

”), he was marked by 

“EX” (excellent), the

” and the following

Item 

SNM [Subject named Marine] was cited for driving under the influence while
assigned to Expeditionary Warfare Group, Pacific, attending school at Naval
Amphibious Base Coronado on 950819 
for this offense in February 1996.

19951. SNM was convicted

[19 August 

’s marking of Petitioner in item 15. Petitioner signed

Petitioner ’s reviewing officer marked the third block in his certification, which indicates that
he concurred with the reporting senior
item 22, indicating he had seen the Section B marks and Section C comments. He did not,
however, sign item 24, which would have indicated whether or not he wanted to submit a
rebuttal. Instead, item 24 reflects the entry 
” The
SAP, attached to the contested report, shows a memorandum for the record to the effect that
Performance.Evaluation Section attempted to obtain
the Headquarters Marine Corps 
Petitioner ’s acknowledgement and rebuttal statement, if desired, but their efforts were to no
avail, so this report was placed in his personnel file without further action.

“See SAP [Standard 

Adaendum Page]. 

(HQMC) 

d. Enclosure (2) is the report of the HQMC Performance Evaluation Review Board

(PERB) in Petitioner ’s case.The report reflects the PERB decision that Petitioner
for removal of his fitness report should be denied This report reads in pertinent part as
follows:

’s request

.

[Pletitioner argues that the information concerning his conviction for
. 

2.. 
Driving Under the Influence 
period and should not have been included in the challenged fitness report.
He points out that his prior Reporting Senior 
Colonel 

(DUI) occurred during a prior reporting

aware ’of the conviction when he authored

[LtCol] Ba...) was fully 

[RS] (Lieutenant

2

the previous report; however, it was his 
reported the conviction...

succes

ho

[PERB] emphasizes 

that...p]etitioner  was afforded

3...a. At the outset, the 
an opportunity to officially respond to the challenged fitness report by
appending a statement of rebuttal. However, by failing to respond to
official correspondence from this Headquarters (so documented in the
Memorandum for the Record appended to the report), he declined that
right and waived any challenge to the report. We also point out that when...
[PJetitioner signed Item 22 of the report, he acknowledged seeing the
completed document which contained the comments addressing his DUI
conviction.

 
.. 

[RS]

(b),

In supporting his contention,.

[Pletitioner states that the previous 

b.
exercised his option, per the provisions of paragraph 3009 of [reference 
addressing when a  “DC” (directed by the Commandant of the Marine Corps)
fitness report is required].
Stated ,
is no option to not report a documented DUI.
fully aware of the conviction (as 
abrogated his responsibility as 
obligation of incorporating known factual information into.. 

[Pletitioner has misinterpreted the provisions in that directive; there
. was

pletitioner indicates), then he knowingly

. to not report the DUI conviction.
 
. 

. was left with the

[LtCol] Ba.. 

LtCol] Bo.. 

If, in fact, 

Succinctly

a[n RS].

. . . 

.[P]etitioner ’s record.

[Pletitioner is naive in somehow believing, that since [LtCol] Ba.. 
.
[Pletitioner
. 

c.. . 
failed to report his DUI, it should completely disappear.. 
knew the DUI was recorded when he signed the challenged report
and he knew its inclusion was proper per the spirit and intent of
[reference 
to report the DUI when he was required to do so.. 

(b)]. The only injustice here was 

&tCol] Ba.. 

[ ‘s ] failure
. 

.

e. Enclosure (3) is the advisory opinion from the HQMC Reserve Affairs Division
(RAM-6) concerning Petitioner ’s failure of selection. The advisory opinion recommends
approval of Petitioner ’s implied request to remove his failure of selection before the FY 2000
Reserve Lieutenant Colonel Selection Board on the basis that his 
competib among his peers if the subject fitness report were expunged. 

.record would 

be-

. “. 

”

f. The memorandum for the record at enclosure (4) shows a member of the Board
, Petitioner’s RS for the period in which he was
 
. 

staff contacted now Colonel (Col) Ba..
convicted of DUI. 

Co1 Ba... advised as follows:

’s

.he did not know about the DUI, and if he had known, he would

. . 
have given Pet [petitioner] an adverse 
stated that Pet did everything he could to hide the fact that he had a
DUI conviction.

fitrep [fitness report]. He

.

3

.

(l)), and that he

.consciously  chose not to note the incident in the fitness report.. 

(5), Petitioner replied to the memorandum for the record at
. did know about his DUI at the time he signed his
Co1 Ba.. 

g. By letter at enclosure 
enclosure (4). He stated that 
fitness report for 1 January 1995 to 13 April 1996 (Tab B to enclosure 
” He said that on
. “. 
. 
19 August 1995, he was arrested in Coronado, California for DUI, while attending a 
two-
week school. He stated that on 20 August 1995, the Coronado police notified the school
commanding officer (CO). He said that on 21 August 1995, the CO told him that he had
already informed Petitioner ’s parent command and the unit Staff Judge Advocate.He stated
that on 28 August 1995, a judge advocate informed him that his immediate superiors, as well
as HQMC, had been told about the misconduct. He asserted that the next time he reported
, asked him about
for drill, which he believed to be in September 1995, his RS, LtCol Ba.. 
. 
his arrest for DUI and told him 
that he and LtCol Ba.. 
a “favor” by not reporting the DUI in the fitness report LtCol Ba.. 
LtCol Ba.. 
the incident  “strains credulity.
of the misconduct is his statement that Petitioner 
&tCol Ba...] did not know
that he had a DUI conviction. 
about the DUI, how could he know [Petitioner] was doing everything [he] could to hide it?

. had only three officers working for him, so his statement that he did not know of
” He concluded the strongest evidence that LtCol Ba... knew
 

” He posed the question that  “If 

. were  “close friends, ” and that he believed LtCol Ba.. 

. was doing him

“did everything he could to hide the fact

. wrote. He stated that

“‘not to worrv about it ’ or words to that effect, ” He alleged

’s

”

h. Paragraph 4006.7. b of reference 

fitness reports, includes the following: “A.. 
reporting period in which the finding is announced in court.

”

(b), the applicable Marine Corps Order governing

.civilian conviction will be reported in the

CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the PERB
report at enclosure 
specifically, removal of the contested fitness report.

(2), the Board finds an injustice warranting limited corrective action,

The Board agrees with the PERB that it was right for Petitioner
question, on learning of the DUI conviction, to cause it to be reflected in his record.
However, in light of paragraph 3.h above, they do not agree it was right for him to
accomplish this by documenting the conviction in the fitness report for which he was.
after the conviction had occurred. Since the comment
responsible, which covered a period 
on the DUI conviction is the only clearly negative information in the contested report, they
find that its improper inclusion tainted the marks assigned, such that the entire report should
be removed. While they 
take no action to ensure this, since their function is purely remedial.

find the DUI conviction ought to be in Petitioner

’s RS for the period in

’s record, they will

The Board finds Petitioner ’s failure of selection for promotion should stand, despite the
favorable opinion from RAM-6. They particularly note that his DUI conviction should have
been in his record in any event. They 
titness report, while
documenting the DUI conviction, would not 
ha& appreciably enhanced his competitiveness.

fmd that removing the contested 

4

In view of the above, the Board recommends the following limited 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

13 Ju196

Period of Report
From
To
c
14 Apr 96

31 Ju196

USMC

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.

f. That the remainder of Petitioner ’s request be denied.

It is certified that a quorum was present at the Board ’s review and
foregding is a true and complete record of the Board ’s proceedings

deliberations, and that
in the above entitled

4.
the 
matter.

_

ROBERT D. ZSALMAN
Recorder

JONATHAN S. 
Acting Recorder

RUSKIN

.

5

.-

t

. 

.

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

.

c

.

Reviewed and approved:

.

@.Z. 

@tiLy--

CBARLES L. TOMPKINS
Deputy Assistant Secretary of the Navy
(Personnel Programs)

. .

THE ASSISTANT SECRETARY OF THE NAVY

(MANPOWER AND RESERVE AFFAIRS)

WASHINGTON. D.C. 20350-1000

MEMORANDUM FOR DEPUTY CHIEF OF STAFF, MANPOWER AND RESERVE

AFFAIRS

Subj:

APPROVAL OF RECOMMEND

CORRECTION OF

JAN  13  

2000

Ref:

(a) BCNR Case Docket Numbe

In the above subject case,

I concurred with the Board for

Correction of Naval Records recommendation that the fitness
14, 1996 to July   31, 1996,   b e
report for the period April
removed from Maj
for this action was the administratively unauthorized reference
in the report to a DUI conviction that occurred outside the
inclu,c.ive  dates of the evaluation.
requires that a civilian conviction be recorded in the fitness
report covering the period in which the finding is announced in
court.

Marine Corps Order  

's record book.

The basis

P1610.7D

I bring this matter to your attention for two reasons.
First, the reference contains information that the reporting
senior at the time of the DUI conviction may have intentionally
omitted the incident from the evaluation.
you for review and any subsequent action deemed appropriate.
Second, the removal of this fitness report eliminates any record
s service record book.
of the DUI conviction in Major
ure that this incident
Corrective action should be ta
therefore be considered in future
is properly recorded and ma
evaluations of Ma
Corps officer.

overall performance as a Marine

I pass this matter to

Deputy Assistant Secretary
of the Navy (Personnel Programs)

.

.=ARTMENT OF THE  NAV Y

HEADQUARTERS UNITED STATES MARINE CORPS

3280RUSSELLROA

QUANTICO,  VIRGINIA 22  

D
134-s 103

IN REPLY REFER TO:
1610

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ION IN THE CASE OF MAJOR
USMCR

(a) 
(b) 

Majo
MC0

DD Form 149 of 10 Mar 99
1

Per 

MC0 

petition contained in reference (a).

1610.11C,  the Performance Evaluation Review Board,

Reference (b) is the performance evaluation directive

The petitioner argues that the information concerning his

1.
wit,h three members present, met on 5 May 1999 to consider Major
Removal of the
fitness report for the period 960414 to 960731  (EN) was
requested.
governing submission of the report.
2.
conviction for Driving Under the Influence (DUI) occurred during
a prior reporting period and should not have been included in the
challenged fitness report.
as fully aware of
Reporting Senior (Lieutenant Colon
it
the conviction when he authored th
ho
however, it was his successor (Lieutenant Colone
To support his appeal, the petitioner
reported the conviction.
furnishes his own statement,
report, and a cop
Lieutenant Colone

a copy of the challenged fitness
eceding fitness report authored by

He points out that his prior

In its proceedings,

3.
both administratively correct and procedurally complete as
written and filed.

The following is offered as relevant:

the PERB concluded that the report is

.

.

a.

At the outset, the Board emphasizes that the petitioner

was afforded an opportunity to officially respond to the
challenged fitness report by appending a statement of rebuttal.
respolid  to official correspondence from
However, by failing to 
this Headquarters (so documented in the Memorandum for the.Record
he declined that right and waived any
appended to the report),
We also point out that when the
challenge to the report.
he acknowledged seeing
petitioner signed Item.22 of the report,
contqined  the comments addressing
the completed document which 
his DUI conviction.

b.

In supporting his contention,

the petitioner states that

the previous Reporting Senior exercised his option, per the

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ON IN THE CASE OF MAJOR
SMCR

Succinctly stated,

provisions of paragraph 3009 of reference (b), to not report the
the petitioner has misinter-
DUI conviction.
preted the provisions in that directive; there is no option to
Lieutenant Colonel

t a documented DUI.
s fully aware of the DUI conviction (as the petitioner
ponsibility as a
), then he knowingly abrog
as left with the
Lieutenant Colon

Reporting Senior.
obligation of incorporating known factual information into the
petitioner's record.

If, in fact,

C .

The petitioner is naive in somehow believing, that since

Lieutenant Colon
completely disap
when he signed the challenged report and he knew its inclusion
was proper per the spirit and inte
Co18
injustice here was Lieutenant
the DUI when he was required to do so.

led to report his DUI, it should
titioner knew the DUI was recorded

nce (b).
failure to report

The only

The Board's opinion,

based on deliberation and secret ballot
4.
vote is that the contested fitness report should remain a part of
Maj

official military record.

,

.

Deputy Director
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

.

2

DE P ARTMENT 

OF THE

  NAV Y

HEADQUARTERS UNITED STATES MARINE
3280  RUSSELL ROA D

 

QUANTICO, VIRGINIA  

22 

134-5 103

CORP S

TO

“k”6’4’REFER  
. 
.
RAM-6
15 Jul 99

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

INION

Ref:

(a) MMER 

corr 1610 MMER/PERB dtd 10 

Ma; 99

the following advisory opinion is

Per reference (a),

1.
provided.
2.
that Maj
if the subject fitness report were expunged.

It is the advisory opinion of the Reserve Affairs Division

ecord would be competitive among his peers

3.

The point of contact is 

Majo

rine Corps Reserve
Head, Reserve Affairs Retention
By direction of the
Commandant of the Marine Corps

. .

MEMORANDUM FOR THE RECORD

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR)
PERFORMANCE SECTION
2 NAVY ANNEX, SUITE 2432
WASHINGTON, DC 20370-5100

TELEPHONE: DSN 224-9842 OR COMM (703) 614-9842
FAX: DSN 224-9857, COMM (703) 614-9857, OR (815) 328-0742
EMAIL

Q.NAVY.MIL

v

DATE:
DOCm
PETITIOmpET):
CALLa
PARTY 
TELEPHONE
WHAT I SAID:
CONVICTION
FOR 
WHAT PARTY SAI
RMED ME THAT HE DID NOT KNOW
ABOUT THE DUI, AND IF HE HAD KNOWN, HE WOULD HAVE GIVEN PET AN
ADVERSE 
FITREP. HE STATED THAT PET DID EVERYTHING HE COULD TO
HIDE THE FACT THAT HE HAD A DUI CONVICTION.

HE KNEW ABOU
G FEB96 WHEN 
1

T PET ’S DUI
IE SIGNED THE 

lJAN95-13APR96.

FITREP