DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON, D.C. 20370-5100

BiG
Docket No:
23 April 1999

1372-99

Dear MajL

~IL~

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.

It is noted that the Commandant of the Marine Corps (CMC) has directed removal of your
fitness report for 29 June 1994 to 15 March 1995.

A three-member panel of the Board for Correction of Naval Records, sitting ill executive
session, considered your application on 21 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.
the Headquarters Marine Corps Performance Evaluation Review Board (PERB), dated
24 February 1999, a copy of which is attached.

In addition, the Board considered the report of

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 the report of the PERB.

In this connection, the Board substantially concurred wit~the comments contained

Regarding your contested adverse fitness report for 16 February to 15 March 1993, the Board
noted that this report need not be consistent with earlier and later reports. They were unable
to find that your reporting senior (RS) did not counsel you about perceived deficiencies.
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.

In

Concerning your contested adverse fitness report for 1 July to 29 November 1995, the Board
found that the determination, in the board of flight surgeons report of 29 November 1995

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(exhibit 10 to you application), that you could resume flying status did not refute your RS’s
nonmedical opinion that you “..
should not be returned to the cockpit of an aircraft.” They
were not convinced that he lacked the experience or basis to express his opinion. Contrary to
the PERB report, they found that you did provide some documentary evidence that your RS’s
attitude toward you was other than professional, specifically,
the statement in the report of the
board of flight surgeons that “It seems as though there is a difinite sic personality conflict
with his last executive officer...” However, the Board was unable to find the board of flight
surgeons had a reliable basis for this statement. Finally, your RS’s comment that you are
“Believed to hold latent intelligence...” did not persuade them that he was biased against you,
although they did not particularly approve of his choice of language. They felt that removing
this language would not be a material correction in an otherwise adverse fitness report.

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

DEPARTMENTOFTHE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

QUANTICO, VIRGINIA 22134-5103

IN REPLY REFER T0
1610
~

~

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 MAJOR

USMC

Ref:

(a) Majo~ ~
(b) MCO P1610.7C w/Ch 1-6
(C) MCO P1610.7D

DD Form 149 of 27 Nov 98

Per MCO 1610.11B, the Performance Evaluation Review Board,

1.
with three members present, met on 19 February 1999 to consider
Major’
the fol owing fitness reports was requested:

petition contained in reference (a) .

Removal of

a.

b.

c.

Report A — 930216 to 930513 (CH) --

Reference (b) applies

Report B - 940629 to 950315 (TR) --

Reference (b) applies

Report C - 950701 to 951129 (TR) —— Reference (c) applies

Concerning Report A, the petitioner

Although he

The petitioner contends that all three of the challenged

2.
reports are erroneous and unjust and that each was entered into
his official record without regard for the provisions of
references (b) and (C).
states that throughout the reporting period, he perceived his
performance was at his “usual high level” and was never provided
any counsel by the Reporting Senior as to deficient performance.
He also claims that a severe head injury (suffered during May
1993) precluded a timely rebuttal to Report A.
believed at the time that he had recovered full use of his
faculties and formulated a viable rebuttal, the petitioner now
realizes that was not the case.
In addition to the foregoing,
the petitioner believes that the report may be in violation~of
With regard to Report B,
certain provisions of reference (b).
the petitioner challenges the reporting officials’ familiarity
with the Marine Corps performance evaluation system, and believes
their lack of understanding contributed to the adversity of thé’~
report.
The petitioner further disclaims any counseling on noted
deficiencies in skills, attitude, knowledge, duties, or
leadership traits.
disclaims any counsel on shortcomings in his performance, and
indicates that Lieutenant ~
was to be the Reporting Senior. - The petitioner states that
during the period covered he continually worked in “daily close

As for Report C, the petitioner again

notified him that he

.
Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVIS

Y,OPINION ON BCNR APPLICATION IN THE CASE OF MAJOR

~

~

USMC

He also points out~tF~the

contact” with and took direction from Lieutenant Colo~e1~
(the Regimental Operations Officer).
Regimental Operations Officer had functioned as his Reporting
Senior for the fitness report immediately prior to Report C, so
he had no reason to believe that relationship would change.
In
addition to challenging Report C based on perceived violations of
reference (c), the petitioner also believes the report reflects
more of Lieutenant Co1one1-~~’s bias against him than actual
performance.
attachments consisting of medical documentation, copies of the
challenged reports, and other data which he believes to be
pertinent.

To support hfth~~eal,the petitioner furnishes 15

3.

In its proceedings, the PERB concluded that:

a.

Report A is both administratively correct and proce-

durally complete as written and filed.
petitioner’s argument to the contrary, the Board believes that
his rebuttal statement is cogent and addresses the facts with
particular attention to detail.

Notwithstanding the

(1) The petitioner’s contention that he performed at his

usual high level during the period covered by Report A is his
unsubstantiated opinion, and one that was not shared by the
reporting officials.
In his review, Colonel~ITJ~djudicated
the Reporting Senior’s evaluation and the petitioner’s expressed
differences.
the petitioner acknowledged that confirmation in reference (a),
that Lieutenant Colonel _________
petitioner’s tendency to o sess with details and lose focus of
the mission.

The Board notes that Co1one1i1fl’~i~didconfirm, and

as correct in assessing the

(2) Contrary to the petitioner’s contention, Report A is
Simply

not reflective of accomplishing “all assigned missions.”
because the Reporting Senior marked Item 16 as “Particularly
Desire”, there is no contradiction between other Section B grades
and Section C comments
particularly want the petitioner on his team in the future did
not negate the fact that he was not sufficiently focused during
the period covered by Report A.
field grade staff officer, a lack of focus is not a “minor
limitation”; it is adverse.

That Lieutenant Colonel ~r”~-wou1d

The Board opines that for a

(3) While Report A is for a relatively brief period, it

documents performance in a fast—paced operational flying
squadron.

In addition, Lieutenant ColoneElLllIIIIJwas

the

2

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF MAJOR

___

USMC

petitioner’s Reporting Senior for the prior three month
report, and was the Reviewing Officer on two other previous
reports for periods of eight months.
petitioner’s capabilities and potential.

He was aware of the

b.

The removal of Report B is warranted and has been

directed.

c.

Report C is both administratively correct and

procedurally complete as written and filed.
following:

We offer the

~~~Thiould

(1) The petitioner’s contention that Lieutenant Colonel
have been his Reporting Senior is unfounded and was

specifically addressed by Colonel
report.
also specifically addressed by Colonel _______

Likewise, the petitioner’s disclaimer to counseling is

when he reviewed the

(2) While the petitioner’s request for an humanitarian

transfer may have been the catalyst for his relief, Report C
indicates that a “relief for cause” from his billet was imminent.
Given the seriousness of such a situation, coupled with the
petitioner’s quick departure, the untimely handling of Report C
is understandable and does not violate the overall spirit and
intent of reference (c).

(3) The Reviewing Officer did a very thorough point—for-

point adjudication of the evaluation and the differences
expressed in the petitioner’s rebuttal.

In his review, Colonel

ovided an important and informative chronology which

p aces t e entire situation into its proper perspective.

(4) Exhibits 3 and 4 to reference (a) are not proof that

Lieutenant Colonel Kopf harbored any bias.
In fact, nothing
offered in reference (a) documents that the Reporting Senior
authored or released the endorsement and message at the exhibits.
The petitioner offers no substantiated documentation or corrobor-
ating statements that the Reporting Senior’s attitude toward him
was anything other than professional.
Exhibit 12 to reference ~.
(a) is a personal note from the Reporting Senior to a colleague
and his use of the word “antics” in addressing the petitioner’s
failure to sign Items 22 and 24 of Report C prior to his
departure from Hawaii is certainly not indicative of an undue
bias.

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Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

IN THE CASE OF MAJOR

(5) Contrary to the petitioner’s contention that what he

offers as medical evidence confirms that he could not function
in his regular duties is determined to be without merit.
The
medical notes and analyses from medical examinations were for
purposes of determining his flying status; however, they stated
he was fit for general duties.
address his billet performance problems and the deficiencies
recorded in Report C.
“cause and effect” regarding the performance evaluations and his
previous medical problems.

Likewise, those notes do not prove a

They were not an attempt to

The Board’s opinion, based on deliberation and secret ballot

4.
vote,, is that Reports A and C should remain a part of Major

official military record.

5.

The case is forwarded for final

.—,.

~rine Corps

Colonel, U.S.
Deputy Director
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

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