DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVYANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 2866-98
20 May 1999

Dear~PP!L~—L$~

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.

It is noted that the Commandant of the Marine Corps (CMC) has processed your contested
fitness report for 1 March 1995 to 3 March 1996 as an adverse report.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 19 May 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 (HQMC) Performance Evaluation Review Board (PERB),
dated 3 April 1998, and the advisory opinion from the HQMC Military Law Branch, Judge
Advocate Division (JAM3), dated 19 January 1999, copies of which are attached. They also
considered a copy of the service record book page 12 entry which documents your contested
nonjudicial punishment (NJP), obtained from your former command that awarded the NJP.

In addition, the Board considered the report of

In this connection, the Board substantially concurred with the comments contained

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 and the advisory opinion from JAM3. They were unable to find
that you were provided an inadequate opportunity for training in your military occupational
specialty, or that your reporting officials expected you to perform as a sergeant with extensive
experience in the Fleet Marine Force.

Further regarding your contested fitness report for 1 March 1995 to 3 March 1996, the Board
did not find it to be inaccurate, vague, or inconsistent. They found no requirement that the
narrative include specific justification for the marks assigned, none of which were adverse.

They were unable to find that the narrative was not performance oriented, that it violated “by
grade” guidance, or that it omitted important information. They were unable to find that you
were not counseled, noting that your third sighting officer stated that according to your
reporting senior, your enlisted leaders “spent significant time” counseling you.
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. Finally, they were unable to find that your reviewing officer expressed
disagreement with your reporting senior as to your fitness for promotion, or that either your
reviewing officer or your reporting senior commented to the effect that you accomplished
“assigned tasks quietly and calmly.”

In any event,

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

Enclosures

Copy to:
C. Mark Baldwin, Esq.

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, D.C. 20380-1775

IN REPLY REFER TO:
1610
MMERIPERB
3 Apr 98

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 SERGEANT
GERALD ~

Ref:

(a) Sergeaiaj
(b) MCO P1610.7D
(c) MCO P16l0.7D w/Ch 1

D Form 149 of26 Dec 97

1. Per MCO 16l0.11B, the Performance Evaluation Review Board, with three members present,
met on 24 March 1998 to consider Sergea~~~tition contained in reference (a). Removal
ofthe following fitness reports was requested:

a. Report A - 950301 to 960303 (CH) -- Reference (b) applies

b. Report B - 960620 to 960901 (TD) -- Reference (c) applies

2. The petitioner contends that both reports are the direct result of material error, unfair
subjective opinion, and the refusal ofhis command to provide adequate and required formal
training. He also argues that he was not allowed an opportunity to acknowledge and respond to
the adverse nature of Report A. To support his appeal, the petitioner furnishes several statements
of support.

3. In its proceedings, the PERB concluded that both reports are administratively correct and
procedurally complete as written and filed. The following is offered as relevant:

a. When Report A was initially received by this Headquarters, it was determined to be

administratively and procedurally incorrect in that, as contended by the petitioner, no opportunity
for a rebuttal was provided. However, this Headquarters undertook the necessary referral action
and offered the petitioner a chance to respond. He did so, and provided his perspective into the
situation during the 12 months covered by the report. Inthe final analysis, however, the Third
Sighting Officer (Lieutenant Co1orJ~IT~àgreedthat the overall evaluation was accurate and
the petitioner’s disagreements were without merit. NOTE: The fitness report appended as TAB
A hereto is the official report ofrecord for the period 950301 to 960303 (CH) (vice the report
currently reflected in the petitioner’s official military personnel file).

Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF SERGEANT

b~Contrary to the petitioner’s assertions, the adversity in Report A is not about a lack of
technical knowledge in his military occupational specialty (MOS). Rather, it is about poor
attitude and improper exercising ofleadership responsibilities. Ofthe 11 advocacy statements
contained in enclosures (3) through (6) of reference (a), all address periods ofperformance either
prior or subsequent to the period covered by Report A. Those statements in enclosures (7) are
from ten corporals and one sergeant, none ofwhich are specific as to how the contents of Report
A are either inaccurate or in error. Further, as contemporaries and subordinates, it cannot be
presumed they were more privy to the petitioner’s duties and responsibilities than were the
Reporting Senior and Reviewing Officer.

c. Regarding Report B, the evaluation was properly referred to the petitioner for his rebuttal.

The Reviewing Officer adjudicated that rebuttal in detail, point for point, and generally
concurred in the overall evaluation. The Third Sighting Officer, who was also the Battalion
Commander, attested to the fairness ofthe report.

d. Notwithstanding the petitioner’s beliefs, his previous performance while on recruiting duty
and his performance subsequent to Report B are simply not germane to the truth and accuracy of
the report. The Reporting Senior’s observations were confined to the period covered by Report B
-- nothing more or less.

4. The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness
reports should remain a part of ~

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
ofthe Marine Corps

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380—1775

IN REPLY REFER TO:

1070
JAM3
3 9 JAN 1~3

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS
IN THE CASE OF SERGEAN
U.S. MARINE CORPS

___

BCNR) APPLICATION

_______

Ref:

(a) Manual for Courts—Martial, United States (1998

Edition), Party

End:

(1) SRB, Page 12

We are asked to provide an opinion regarding that portion of

1.
Petitioner’s application which requests that the entry reflecting
his nonjudicial punishment (NJP) of 30 August 1996 be removed
from his official records.

2.

3.

We recommend that relief be denied.

Our analysis follows.

Background

a.

The enclosure reflects that Petitioner accepted NJP on 30

August 1996 for a single violation of Article 92, UCMJ, for
disobeying an order to participate in a urinalysis.
He was
afforded the opportunity to consult with counsel prior to
accepting the punishment, and was informed of his right under
reference (a) to refuse such a resolution.
reduction to corporal (E-4).
guilty finding was affirmed, the reduction was suspended for 12
months.

He appealed the NJP.

He was awarded a

Although the

b.

Petitioner was assigned to Weapons Company, 2d Battalion,

In rebuttal statements to those fitness reports,

6th Marine Regiment during the period from March 1995 to
September 1996.
He received two adverse fitness reports during
this period, from two different Reporting Seniors and Reviewing
Officers.
Petitioner maintained in essence that the reports were inaccurate
because he had performed well in his previous assignment as a
recruiter, that he was performing well in his current assignment,
and that any shortcomings were a result of the command’s failure
to provide refresher training for technical skills as a mortarman
that had atrophied during his recruiting tour.
reiterates those arguments, adding that the record of NJP should
be expunged because that proceeding was manufactured by his

Petitioner now

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCN
IN THE CASE OF SERGEANT
U.S. MARINE CORPS

.I4CATION

superiors in order to bolster their uncomplimentary assessments

of him.

4.

Analysis

a.

The record of NJP at issue is correct in form, and

The

The NJP entry

Petitioner’s claim that the offense was

suggests no irregularity in the proceeding itself.
punishment imposed was authorized based on the grade of the
officer who imposed it, and a review of the record does not
suggest that the NJP authority abused his discretion in any way
at any point.
manufactured in order to discredit him is unsupported by any
evidence, and it also does not make any sense.
indicates that Petitioner disobeyed an order to participate in a
urinalysis.
This is a factually simple offense, not susceptible
of easy fabrication.
by his Battalion Commander, not by one of the reporting seniors
or reviewing officers involved in the preparation of the fitness
reports complained of.
reviewed his appeal, and saw no reason to overturn the guilty
finding.

Petitioner’s Regimental Commander also

Petitioner was found guilty of that offense

b.

Petitioner provides no basis for removal of the record of

NJP.

Conclusion.

5.
recommend the requested relief be denied.

Accordingly, for the reasons set forth above, we

Head, Military Law Branch
Judge Advocate Division