DEPARTMENT OF  THE  N A V Y  

B O A R D   F O R   C O R R E C T I O N   O F   N A V A L   R E C O R D S  

2  N A V Y   A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

BJG 
Docket  No:  3 156-0 1 
1 1  April  2002 

This 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  reconsideration  as to  the  fitness report  for  1  October  1998 to  31  March  1999 
Your previous case,  docket number 7632-00, was  denied  on  3 May  2001.  You  also made 
new  requests to  remove your  relief  for cause from  recruiting duty, which  was  requested  on 
5  April  1999; your  nonjudicial punishment of  29  March  1999; and  your  service record  page 
11 counseling entries dated  17 and  24  February  1999. 

A three-member panel  of  the Board  for Correction  of  Naval  Records, sitting in  executive 
session, reconsidered  your case on  11 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 
current  application, together with  all material submitted in  support thereof, the Board's  file 
on  your prior  case (including the report of  the Headquarters Marine Corps (HQMC) 
Performance Evaluation Review Board  (PERB) dated 6 November 2000, a copy of which  is 
attached),  your  naval record  and applicable statutes, regulations and  policies.  In  addition, 
the Board  considered  the report of  the PERB in  your current case, dated  3  October 2001, and 
the advisory opinions from the HQMC  Military Law  Branch, Judge Advocate Division 
(JAM4), dated 2 July 2001,  the Marine Corps Recruiting Command, dated  17 July 2001, and 
the Manpower Management Information Systems Division  (MIFD), dated  22  August 2001, 
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 in  your current case and  the advisory opinions.  The two new 
supporting statements you  provided,  from a Marine Corps gunnery  sergeant and lieutenant 
colonel (retired),  did  not persuade them  that any of  the contested actions were unwarranted. 

They were unable to  find that your noncommissioned officer in charge "had an  aversion 
working with  [you]," or if  he did, that this was  without good  reason;  nor could  they  find that 
his attitude toward  you  was  a significant factor, apart from your own conduct and 
performance, in  the decision to take any of  the contested actions against you.  In  view  of  the 
above, the Board  again  voted  to deny any  relief.  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 

DEPARTMENT OF THE NAVY 

HEADQUARTERS  U N I T E D  STATES M A R I N E  CORPS 

3 2 8 0 R U S s E L L R O A D  

QUANTICO,  VIRGINIA  22 1 3 4 - 5  1 0 3  

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

1610 
MMER/PERB 

6 

:;loo 

MEMORANDUM  FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj : 

MARINE CORPS PERFORMANCE EVALUATION  REVIEW BOARD  (PERB) 
ADVISORY 
SERGEANT 

THE CASE OF 
USMC 

Ref: 

(a) Sergeant- 
(b) MCO  P1610.7E 

DD Form 149 of 28 Jul 00 

1.  Per MCO  1610.11Cr the Performance Evaluation  Review Board, 
with three members present, met on 2 November  2000 to consider 
Sergeant 
the fitness report for the period  981001 to 990331  (CD) was 
requested.  Reference  (b) is the performance evaluation directive 
governing submission of the report. 

petition contained in reference  (a).  Removal of 

2.  The petitioner provides his perspective into the events and 
circumstances culminating in the non judicial punishment  (NJP) 
recorded in the challenged fitness report.  By inference, he 
alleges that both the NJP and the resulting fitness report are 
unfair/unjust.  The petitioner also believes that the final 
sentence in Section I, concerning being processed  for a relief 
for cause, violates the provisions of reference  (b). 

3.  In its proceedings, the PERB concluded that, with one minor 
exception, the report is both administratively correct and 
procedurally complete as written and filed.  The following is 
offered as relevant: 

a.  As identified by the petitioner, the ,uilii~~~,t by the 

Reporting Senior  (Section I) is both inappropriate and premature. 
The Board does not, however,  find this error to invalidate an 
otherwise completely acceptable and justified  fitness report. 
In this regard, the Board has directed elimination of the 
offending statement  (i.e., "Accordingly,  he will be processed 
in accordance with volume three for a relief for cause."). 

b.  The uncontroverted matter of fact within the fitness 

report is that the NJP occurred and was properly recorded via the 
performance evaluation system.  Unless and until that action is 
set aside, removal of the fitness report is simply not warranted. 

Sub j :  MARINE CORPS PERFORMANCE EVALUATION  REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLICATION  IN THE CASE OF 
SERGEAN T"lS9111e;., JR.-SMC 

4.  The Board's  opinion, based on deliberation and secret ballot 
vote,  is that the contested fitness report, as modified,  should 
remain a part of Sergean-official 
military  record.  The 
limited corrective action identified in subparagraph 3a is 
considered sufficient. 

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 
of the Marine Corps 

D E P A R T M E N T   O F   T H E   N A V Y  

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  

3 2 8 0   R U S S E L L   R O A D  

O U A N T I C O .   V I R G I N I A   2 2 1 3 4 - 5 1 0 3  

I N  R E P L Y   R E F E R   T O :  
1610 
MMER/PERB 
j  (JC'  3J; 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Sub j : 

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

USMC 

Ref: 

(a) Sergeant -DD 
(b) MCO P1610.7E 
(c) PERB Advisory 1610 MMER/PERB of 6 Nov  00 

Form 149 of 2 Apr 01 

1.  Per MCO 1610.11Cr the Performance Evaluation Review Board, 
with three members present, met on 4 October 2001 to consider 
Sergeant-petition 
the fitness report for the period 981001 to 990331  (CD) was 
requested.  Reference  (b) is the performance evaluation 
directive governing submission of the report.  NOTE:  Both the 
PERB and BCNR previously denied Sergeant-request 
remove the aforementioned fitness report.  Your 07632-00 refers. 

contained in reference  (a).  Removal of 

to 

2.  The petitioner contends the report is inaccurate and unjust 
and that the recruiting station officials involved in his 
situation were targeting him by creating a persona that never 
existed.  To support his appeal, the petitioner furnishes his 
own detailed statement, recruiting station information, two 
letters of reference, and a copy of his relief for cause 
package. 

3.  In its proceedings, the PERB once again - - - P I  
report is both administratively correct and procedurally 
complete as written and filed.  Simply stated, the petitioner 
has not provided anything in the way of new or relevant material 
evidence that would cause the PERB to revisit it's  prior 
decision.  The corrective action and opinions/conclusions cited 
in reference  (c) remain valid. 

114-d  t F 7 t   t h o  

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

official military  record. 

Sub j :  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLICATION  IN THE CASE OF 
SERGEANT 

JR . VMC 

 

-

.

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 
of the Marine Corps 

MEMORANDUM  FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

DEPARTMENT OF THE N A W  

HEADQUARTERS UNITED STATES MARINE CORPS 

2 N A W  ANNEX 

WASHINGTON, DC 20380-1775 

IN REPLY REFER TO. 

JR. - 

0 2  JUL  m i

 

Sub]:  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR) APPLICATION 

IN THE CASE OF SERGEANT 
USMC 

1.  We are asked to provide an advisory opinion on Petitioner's 
request for the removal from his Service Record Book  (SRB) and 
his official military personnel file  (OMPF) of all references to 
his nonjudicial punishment  (NJP) of 29 March  1999 and his 
subsequent relief for cause.  In addition, Petitioner requests 
the removal of all related adverse page 11 entries from his SRB 
and OMPF. 

2.  We recommend that Petitionerrs request for relief be denied. 
Our analysis follows. 

3.  Background. 

a.  On 17 February 1999, Petitioner received a page-11 

counseling entry for failing to perform his recruiting mission, 
specifically, low productivity. 

b.  On 24 February 1999, Petitioner received another page-11 
counseling entry for misconduct.  This counseling entry was for 
repeated tardiness, disobedience of a lawful order, and failure 
to meet minimum performance standards. 

c.  On 19 March 1999, Petitioner was disrespectful in 

language toward his staff noncommissioned officer in charge 
(SNCOIC) by saying, "What the fuck, are you fucking recording 
me?"  On 29 March  1999, Petitioner received NJP  for 
insubordination conduct toward a noncommissioned officer in 
violation of Article  91 of the Uniform Code of Military Justice 
(UCMJ).  Petitioner was awarded a forfeiture of $375.00 per 
month  for 2 months.  Petitioner appealed.  Petitioner's  appeal 
was denied on 17 May 1999. 

d.  On 10 September 1999, Petitioner was relieved for cause 

and his additional Military Occupational Specialty  (MOS) of 8411 
voided. 

Subj:  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR) APPLICATION 

IN THE CASE OF SERGEAN- 
USMC 

JR. 

3.  Analysis.  No  legal error occurred in the imposition of NJP 
Jr in Petitioner's  relief for cause.  Petitioner, however, now 
elaims that his NJP and relief for cause were unjust because his 
zommand refused to grant his request to be transferred out of 
what he perceived to be a difficult working environment. 
Petitioner's  claim is without merit.  Personnel decisions are 
based upon the needs of the Marine Corps and not necessarily the 
individual preferences of a single Marine.  In this case, 
Petitioner's  request to be moved out of this office 
coincidentally occurred simultaneously with his failure to meet 
his recruiting mission.  Petitioner was counseled on numerous 
accasions that his attitude and conduct needed improvement if he 
wished to remain on recruiting duty.  Despite reasonable efforts 
by  the command to give Petitioner notice that continued non- 
performance and misconduct could result in adverse 
administrative and/or disciplinary action, Petitioner did not 
respond positively to the counseling.  Instead, Petitioner 
elected to be disrespectful in language towards his SNCOIC. 
This behavior and substandard performance led to Petitioner's 
NJP and subsequent relief for cause.  If Petitioner's  working 
environment was as untenable as he now portrays  it, his 
appropriate course of action was to request mast not violate the 
UCM J . 

4.  Recommendation.  Accordingly, we recommend that Petitioner's 
request for relief be denied. 

Judge Advocate  Division 

UNITED STATES  MARINE CORPS 
MARINE CORPS  RECRUITING COMMAND 

3 2 8 0  RUSSELL ROAD 

QUANTICO, VA  22 134-5 103 

IN REPLY  R E F E R  TO 

1610 
G-1 
17 Jul 01 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTIONS OF 

NAVAL RECORDS 

Subj:  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR) 

APPLICATION IN THE CASE OF SERGES 

SSMC 

1.  We were asked to provide an advisory opinion on Sergeant 

-equest 

for the removal from his Service Record Book 

(SRB) and his official military personnel file  (OMPF) of all 
references to his relief for cause  (RFC).  We recommend that 
Sergeant-quest 
be denied. 

for removal of all references to his RFC 

2.  On 5 April 1999, sergeant-was 
duties as a canvassing recruiter by the recruiting station 

relieved of his 

commanding officer.  On 30 August  1999, Sergeany 

additional Military Occupational Specialty  (MOS) of  411 was 
voided by  the Commanding General, Eastern Recruiting Region. 
The RFC was the result of actions and behavior that cannot be 
tolerated on recruiting duty.  He was counseled on numerous 
occasions concerning his attitude and conduct.  Sergeant- 
dld not respond favorably to the counseling.  On the contra'ry, 
he opted to act in a disrespectful manner to his SNCOIC and to 
continue to perform in a substandard manner. 

3.  Sergeant F FC was processed in accordance with Volume 

111, Guideboo  for Recruiting Station Operations.  We r~--1mmend 
that Sergeant-request 
his RFC be denied. 

for removal of all references to 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

3 2 8 0  RUSSELL ROAD 

QUANTICO,  VIRGINIA  2 2 1 3 4 - 5 1 0 3  

IN REPLY REFER TO: 
1070 
MIFD 
ii i A U ~  2 ; " ~  

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj:  BCNR APPLICATION IN THE CASE OF SERGES 

-USMC 

1.  Sergean-plication 
has been reviewed concerning his request for removal of the 
following from his service records: 

with supporting documents 

a.  Relief for cause documents on file in his official 

military personnel files (OMPF) . 

b.  Offenses and Punishments NAVMC 118(12) page 12 entry 

dated 990329. 

c.  Administrative Remarks  (1070) NAVMC 118(11) page 11 

entries dated 990217 and 990224. 

2.  MCO P1070.12J1 Marine Corps Individual Records Administration 
Manual  (IRAM), chapter 1, sets forth guidance and provides 
information on the contents of the OMPF in use at Headquarters, 
U. S. Marine Corps.  Limitations exist regarding the types of 
documents authorized for inclusion in the OMPF. 

3.  Paragraph 4010 of the IRAM authorizes commanders to make 
entries on page 11 which are considered matters forming an 
essential and permanent part of a Marine's military history, 
which are not recorded elsewhere in the Service Record Book 
(SRB) or the Marine's  automated record. 

4.  Paragraph 4011 of the IRAM authorizes commanders to make 
entries on page 12 which is designed for recording offenses and 
punishments and for establishing command jurisdiction at the time 
of the offense. 

5.  One of the many leadership tools that a commander has at 
their disposal is counseling and rehabilitation for their 
Marines.  Marine Corps policy is that reasonable efforts at 
rehabilitation should be made prior to initiation of separation 
proceedings and that the commander is authorized to document 
those efforts by a page 11 counseling entry per the IRAM. 

IN THE CASE OF SERGEANT 
USMC 

Corps Separation Manual, paragraph 6105, sets forth 

taining to counseling and rehabilitation.  In cases 
unsatisfactory performance, pattern of misconduct, or 
s requiring counseling under paragraph 6105, separation 

The Marine 
policy per 
involving 
other base 
processing may not be initiated until the Marine is counseled 
concerning deficiencies, and afforded a reasonable opportunity to 
overcome those deficiencies as reflected in appropriate 
counseling and personnel records. 

6.  MCO 1610.12, the U.S. Marine Corps Counseling Program states 
that : 

a.  "Counseling is that part of leadership which ensures, by 

mutual understanding, that the efforts of leaders and their 
Marines are continuously directed toward increased unit readiness 
and effective individual performance. 

b.  Increase individual performance and productivity through 

counseling and thereby increases unit readiness and 
effectiveness. 

c.  Counseling enhances the leader's ability to improve the 

junior's performance." 

7.  The following comments/opinions concerning the relief for 
cause documents on file in his OMPF are provided: 

a.  A copy of the approved relief for cause package does 

meet the guidelines contained in paragraph 1000.4 of the IRAM for 
inclusion in his OMPF. 

b.  sergeant- 

provided the opportunity to make a 
rebuttal statement  I:  r.=.;aired by pal :j~;:aph 1 0 0 0 . 4 ~  of the II-!A. 

8.  The following comments/opinions concerning the page 12 entry 
dated 990329 are provided: 

a.  A page 12 is required when NJP is imposed as authorized 

by the Uniformed Code of Military Justice  (UCMJ), Article 15, and 
the Manual for Courts-Martial (MCM) . 

Sub]:  BCNR APPLICATION IN THE CASE OF SERGEANT 

-SMC 

b.  The elements of a proper page 12 entry are:  The date 

of the entry; the article(s) of the UCMJ violated; a summary of 
the offense; the punishment imposed; the RUC of the unit 
reporting the punishment; the unit diary  (UD) number and date on 
which the punishment is reported; whether an appeal was made and 
action taken on the appeal, if any; the entry must state the 
billet and grade of the officer imposing the NJP; and if a 
forfeiture is imposed, include the amount per month, number of 
months, and total amount of forfeiture. 

c.  A copy of the pa e 12 entry dated 990329 is required to 

be included in Sergean 
continued active service in the Marine Corps.  Sergeant- 
current enlistment began on 18 June 1998 and does not expire 
until October 17, 2001.  The page 12 currently on file in his 
OMPF was documented evidence in support of his relief for cause 
package. 

OMPF when he reenlists for 

d.  The page 12 entry dated 990329 meets the elements of a 

proper page 12 entry per paragraph 4011 of the IRAM with the 
exception that the copy available is not signed by the commander 
or a designated representative authorized to sign by direction. 

e.  Even though the page 12 entry that contains information 

of the NJP is not signed by the commander or a designated 
representative authorized to sign by direction, it can be 
presumed that the original copy on file in his SRB has been 
authenticated per paragraph 4001.4h of the IRAM and should be 
included in his OMPF when he reenlists during October 2001. 

9.  The following comments/opinions concerning the page 11 
entries dated 9990217 and 990224 are provided: 

a.  The counseling entries do meet the elements of a 

proper page 11 counseling in that they list deficiencies, 
recommendations for corrective action, available assistance, and 
states that sergeant- 
rebuttal statement.  Additionally, the entries afford him an 
opportunity to annotate whether or not he chose to make such a 
statement and if made, a copy of the statement would be filed in 
the SRB. 

provided the opportunity to make a 

b.  Sergeant -knowledged 

the counseling entries by his 

signature and indicated his desire to make a statement in 
rebuttal.  It is not known if he refutes the contents of the page 
11 entries in his rebuttal statements since he does not include 
- - ,, --  of tL-,z~: _: ~at;;lni-;lts in his r.li:pLi~~LL:i~~l: I ~ L ' I .   x e  they 
,  .: 1 . 1   .  -  - 
available in his OMPF. 

I 

Sub]:  BCNR APPLICATION IN THE CASE OF SERGEANT - USMC 

10.  In view of the above, it is recommended that: 

a.  The Board for Correction of Naval Records disapprove 

for removal of the relief for cause 

Sergean -request 
package from hls OMPF. 

b.  The Board for Correction of Naval Records disapprove 

S e r g e a n t o r e q u e s t  for removal of the Offenses and 
Punishment NAVMC 118(12) page 12 entry dated 990329 and the 
Administrative Remarks  (1070) NAVMC 118(11) page 11 entries dated 
990217 and 990224 from his service records. 

c.  If the Board for Correction of Naval Records finds that 

sergean-records 
committed, approve the removal of his relief for cause package, 
the Offenses and Punishments NAVMC 118(12) page 12 entry dated 
990329, and the Administrative Remarks  (1070) NAVMC 118(11) page 
11 entries dated 990217 and 990224 from his service records. 

are in error or an injustice was 

11.  Polnt of contact i

-

 

DSN- 

Manpower Management Information 
Systems Division