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 

BJG 
Docket No:  5 106-99 
1 October  1999 

Dear  Gunnery Ser 

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. 

You  requested removal of  your  fitness reports for  1 November  1996 to  17 June  1997 and 
18 June to 28 November  1997.  It is noted  that  the Commandant of  the Marine Corps (CMC) 
has referred both  contested fitness reports to  you  to give you  a chance to  make a rebuttal, and 
is filing a memorandum  to show that item  17a (whether the Marine has been  the subject of a 
commendatory report) of  your  report for  18 June to 28 November  1997 should have been 
marked  "yes" in  light of  your  meritorious mast. 

A  three-member panel of  the Board  for Correction of  Naval  Records, sitting in  executive 
session, considered your  application on  10 September 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 Rnard 
considered the report of  the Headquarters Marine Corps Performance Evaluation Review 
Board  @ERB), dated  5 August  1999, and  a memorandum for the record dated 
7 September  1999, copies of  which  are 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.  In  this connection, the Board  substantially concurred with  the comments contained 
in  the report of  the PERB. 

The Board  was  unable to  find  that your  recruiting  substation was  overtasked, or that your 
reporting seniors did  not  take due account of  the problems facing you.  In  this regard, they 
noted  that both  contested  fitness reports specifically acknowledged such problems.  Enclosure 
(4) to  your  application did  not persuade them  that the reporting senior erred by  stating, in  the 

contested report for  1 November  1996 to  17 June  1997, that your  "Overall results were in 
lower third  of  peers."  In  any case, they  found that even if  this statement were not precisely 
correct, the appropriate remedy  would  be  to  amend or remove the statement, rather than 
completely remove the report in  which  it appears. 

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 

DEPARTMENT OF THE  NAVY 

H E A D Q U A R T E R S  U N I T E D  S T A T E S   M A R I N E  C O R P S  

3280 RUSSELL R O A D  

Q U A N T I C O ,   V I R G I N I A  22 134-5 1 0 3  

IN R E P L Y  R E F E R  TO: 

1610 
MMER/PERB 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINI 
GUNNERY SERGEA 

SMC 

Ref: 

D 
(a) GyS9-t 
h 
(b) MCO P 
(c) MCO P1610.7D w/Ch 

Form 149 of 17 Dec 98 
1 
1-4 

Encl : 

(1) Completed Fitness 
(2) Completed Fitness 

Report 961101 to 970617 (CH) 
Report 970618 to 971128  (TR) 

1.  Per MCO 1610.11B, the Performance Evaluation Review Board, 
with three members present, met on 26 February 1999 to consider 
etition contained in reference  (a). 
Gunnery Sergean 
ness reports was requested: 
Removal of the 

a.  Report A -  961101 to 970617 (CH) --  Reference  (b) applies 

b.  Report B -  970618 to 971128  (TR) --  Reference  (c) applies 

2.  The petitioner contends that comments contained in both 
reports render those evaluations adverse, and as such, should 
have been referred to him for the opportunity to append 
statements of rebuttal.  To support his appeal, the petitioner 
furnishes his own detailed statement and several items of 
documentary material, to include seven letters on his behalf. 

3.  In its proceedings, the PERB concluded that: 

a.  The overall tenor of both reports is such that each 

appraisal should have been referred to the petitioner for 
official acknowledgment (i.e., signature in Item 24) and the 
opportunity to provide rebuttal statements.  Owing to the 
relative recency of both reports at the time the PERB first 
considered reference (a), the Board concluded that referral at 
that time would be appropriate. 

b.  Both reports were sent to the petitioner with instruc- 
tions concerning the submission of rebuttal statements and the 
timeline in which to accomplish that action.  The petitioner, 
however, has failed to respond to official correspondence from 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLLCATION IN THE CASE OF 
GUNNERY SERGEANT 

MC 

this Headquarters, even after telephonically advising the action 
agency of his intent in that regard.  It is the position of the 
PERB that the petitioner has been given every opportunity to 
officially record his disagreements with the reports and have 
those concerns properly adjudicated by the reviewing officials 
involved.  Since he opted to forego statements in his behalf, and 
notwithstanding the documentation provided with reference  (a), 
the Board must presume that he is passively concurring in the 
accuracy and validity of the respective evaluations under 
consideration.  The Board also stresses and emphasizes that the 
appeal system is not a substitute for proper resolution of 
adverse fitness reports per the provisions of references  (b) and 
(c) . 
4.  The Board's  opinion, based on deliberation and secret ballot 
vote, is that the contested fitness reports, as reflected in the 
enclosures, should remain a part of Gunnery sergean- 
official military record. 

8 ., 

5.  The case is forwarded for final action. 

Evaluation Review Board 
Personnel Management Division 
Manpower and Reserve Affairs 
Department 
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 -263 

FAX: TELEPHa 

D 
E-MA11 

DATE:  7SEP99 

PETITIONER  (PET) :  GYS 

PARTY  CALLED:  M 

TELEPHONE NUMB 

' em 

USMC 

ERB 

WHAT I SAID:  I REQUESTED THAT THE PERB CHANGE BLOCK  17.A, 
COMMENDATORY CORRESPONDENCE, FROM  "NO"'TO "YES", IN PET'S 
CONTESTED FITREP FOR  18JUN TO 28NOV97 BECAUSE OF THE MERITORIOUS 
MAST HE RECEIVED DURING THE PERIOD.  I ALSO ASKED WHY  THE PERB DID 
NOT  ADDRESS PET'S CONTENTIONS AND ALLEGATIONS. 

WHAT PARTY S 
INSERT A MEMO FOR THE RECORD IN PET'S  OMPF DOCUMENTING THE 
CHANGE TO BLOCK  17.A.  SHE ALSO  INFORMED ME THAT THE REASON THE 
PERB DID NOT  ADDRESS HIS  CONTENTIONS AND ALLEGATIONS IS THAT HE 
177D NOT  SUBMIT RFRUTTALS TO THE PONTFSTED FITREPS AFTER THE PERB 
RULED THAT THEY WERE  "ADVERSE". 

FORMED ME THAT SHE WOULD