DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

SMC
Docket No: 02794-00
17 August 2000

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 16 August 2000. Your allegations of error and
injustiCe were reviewed in accordance with administrative 
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 17 April 2000, a copy of which is attached.

r:gulations and procedures

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 

PERFJ.

The Board did not agree with your contention that the reviewing officer’s comment to the
effect your relief negatively affected morale and placed a burden on other Marines was
speculative. They were unable to find the reporting senior and reviewing officer allowed
your involvement with civil authorities to affect their evaluation of other aspects of your
performance. The documentation you provided reflecting good performance as a recruiter
did not convince the Board that the reviewing officer was wrong to indicate that your civil
involvement harmed your ability to function as a Marine staff noncommissioned officer, or
that you had  “poor recruiting performance” after that involvement. In this regard, they
particularly noted that you were sentenced on 19 May 1993, after your favorable recruiter
evaluation on 22 March 1993. Finally, they found no requirement for the reporting 
reviewing officer to provide evidence to support their comments.

se&r or

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

$

Dt.  

IRTMENT  OF THE

 

NAVY

HEADQUARTERS UNITED 

STATES MARINE CORPS

3280RUSSELL ROA

D

QUANTICO, VIRGINIA 22

 

134-5 103

IN 
REPLY  REFER TO:
1610
MMER/PERB
\ 7  

APFI 

?QQD

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD
ADVISORY OPINION ON BCNR APPLICATION
FORMER MARINE STAFF SERGEANT

IN THE CASE

(PERB)
OF
JR.,

D Form 149 of 16 Feb 00
/Ch 1-6

1.

Per 

MC0 

1610.11C,  the Performance Evaluation Review
members present, met on 12 April 2000 to consider

petition contained in reference (a).

Board,

Removal of

the fitness report for the period 921016 to 930611 (CH) was
requested.
governing submission of the report.

Reference (b) is the performance evaluation directive

The petitioner believes the report

2.
procedural errors,
is his contention that the comments made

substantive inaccuracy, and injustice. It

 

by 

Lieutenant Colonel

contains both policy and

added new adverse material,

(the Reviewing Officer)
ecessitatinq referral to him for comment.
report 

that this action never occurred and the
by a third officer.
reoortina  officials both referred to a civil action that was in
th; appellate process as
support his appeal,
documentary evidence.

of the ending date of the report.
the petitioner furnishes several items

Additionally, the petitioner argues that the

To
of

 

2

He points out
never 
sighted

was 

In its proceedings, the PERB concluded that the report

3.
both administratively correct and procedurally complete as
The following is offered as relevant:
written and filed.

is

a.

In his comments on the fitness report, the Reviewing

as advised by the petitioner that a rebuttal

Officer indicated that he spoke with the petitioner on 28 July
1993 concerning the missing rebuttal.
Colonel
would not be submitted until the civil action had been
Said rebuttal never materialized and the
this Headquarters without the Standard Addendum Page or Third
Officer Sighting.
report that this Headquarters (MMSB-32) attempted to obtain the
petitioner's acknowledgment and rebuttal to the adverse nature
the fitness report.

Based on the date of the Headquarters

It is clear from the attachment to the fitness

At that time Lieutenant

 
received 

report 

was 

 

at

completed.

of

c

.

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

AFF 

SERGEAN

r

1994), that would have included

correspondence (10 February  
offering the petitioner an opportunity to comment on the
report (to include the Reviewing Officer's comments).
there was ultimately nothing for a Third Sighting Officer to
adjudicate/resolve,
this Headquarters.
correspondence and chose not to respond was his decision,' and one
for which he must accept responsibility at this time (i.e., some
six years after the fact).

the report was correctly third-sighted at
That the petitioner disregarded official

  entire
Since

b.

Reference (b) is succinct that the results of a civil

conviction (or court-martial) will be recorded in the reporting
period in which the verdict is announced in court.
4006.733 applies.
challenged fitness  
injustice.
appeal require a delay in reporting the event.
this particular case is that the appeal was denied and the
"guilty" finding/sentence remained in effect.

Only in the case of non judicial punishments does an
Significant in

The incident was correctly documented in the
repdrt  and constitutes neither an error nor an

Subparagraph

C .

A relief from duties is the prerogative of the Commanding

Officer and nothing furnished with reference (a) causes this
Board to question that decision or the resulting fitness report.
In essence,
meet the burden of proof necessary to establish the existence of
either an error or an injustice.

the Board concludes that the petitioner has failed to

4.
V
0

5.

The Board's opinion,

based on deliberation and secret ballot

e contested fitness report should remain a part
official military record.

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

.