DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

Y

2 NAW ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 4072-00
6 September 2000

This is in reference to your application dated 23 February 2000, seeking reconsideration of
your previous application for correction of your naval record pursuant to the provisions of
title 10 of the United States Code, section 1552. Your previous case, docket number 834-92,
in which you requested that the fitness report for 1 June to 7 September 1988 be modified or
removed, was denied on 6 February 1992. You again request that this fitness report be
removed, and you add a new request for consideration by a special selection board for
promotion to lieutenant colonel.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 24 August 2000. 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, your naval record and applicable statutes, regulations and
policies.
In addition, the Board considered the report of the Headquarters Marine Corps
(HQMC) Performance Evaluation Review Board (PERB) in your case, dated 7 June 2000,
and the advisory opinion from the HQMC Officer Assignment Branch, Personnel
Management Division (MMOA-4), dated 21 June 2000, copies of which are attached. They
also considered your rebuttal letter dated 5 July 2000.

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.

The Board substantially concurred with the comments contained in the report of the PERB in
finding that the contested fitness report should stand.
In their previous decisional document
. .not persuaded that the final marks on
. ”
dated 11 February 1992, they stated that they were 
the contested fitness report did not represent your reporting senior’s intent when they were
assigned. . . 

’ You provided nothing new to show the marks in “attention to duty” and

“judgment ” were changed because of command influence. They noted that the PERB does
not allege the reporting senior ordered a 
say you deny that he ordered this.

“sight and touch ” formation; in paragraph 3.c they

The Board noted paragraph 7 of the Commandant of the Marine Corps (CMC) second
endorsement dated 4 January 1989 on the Judge Advocate General Manual investigation of
the lance corporal ’s death, at Tab 5 to your application, directed that a copy of the
investigation be provided to  “all Marine Corps commanding generals [emphasis added] for
appropriate incorporation of its findings and conclusions in all their operations and training. 
”
They were unable to find, as you alleged, that the CMC guidance 
staff non-commissioned officers
could not accept your allegation that all subsequent boards that considered you for any
purpose were tainted.

 
[SNCO ’s] read the investigation... ” For this reason, they

“mandated all officers and

The Board agreed with the assessment you attributed to a counselor on 1 April 1997, to the
effect that the contested fitness report “‘is insurmountable and regardless of any billet or
further assignment, promotion would be very unlikely.
made your selection to lieutenant colonel definitely unlikely, regardless of your billet
assignment or selection for schools. Therefore, even if you are correct that knowledge of the
investigation impaired your billet assignment and selection for schools, and even if you were,
as you allege, the victim of collusion to deny you a chance to return to a command billet,
they found that your failures by the Fiscal Year 1998, 1999, 2000 and 2001 Lieutenant
Colonel Selection Boards should stand, and that you should not be recommended for a
special selection board. They were unable to find, despite the comments of your career
counselors, that your promotion boards did not follow the guidance they were given.

“’They found this report would have

Finally, the Board was unable to find that you suffered discriminatory treatment. They
observed that adverse actions were taken against all those with important roles in the lance
corporal ’s death. Concerning your allegation that your reporting senior was afforded a
chance to return to command while you were not, their position as stated above is that the
contested fitness report, rather than your billet assignment, precluded your selection for
promotion. As also indicated above, they were unable to find that CMC mandated all
officers and 
a mandate reflected discrimination against you.

SNCO ’s read the investigation, so they could not accept your argument that such

Since the Board found insufficient basis to remove your failures of selection to lieutenant
colonel, they had no grounds to set aside action to effect your involuntary retirement on
1 November 2000.

In view of the above, the Board voted again to deny 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 UNITED STATES

  MARINE CORP

~~~ORUSSELLROAO

QUANTICO, VIRGINIA 22

 

134-5  103

S

IN REPLY REFER TO:
1610
MMER/PERB

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

N IN THE CASE OF MAJOR
USMC

DD Form 149 of 23 Feb 00

1.

Per 

MC0 

1610.11C, the Performance Evaluation Review Board,
embers present, met on 25 May 2000 to consider Major
petition contained in reference (a).

Removal of

submission of the report.

Reference (b) is the performance evaluation directive
During 1991, (then)

the fitness report for the period   880601 to 880907 (CH) was
requested.
governin
Captain
Section B grades on this same report.
asks for complete removal of the report,
new application vice a request for reconsideration.

ubmitted a petition challenging certain

Since this current request
PERB is treating it as a

NOTE:

. 

"... due process,

and unprejudiced consideration

It is his belief that the Marine Corps failed to
fair and equitable consideration for

The petitioner bases his request for removal of the report
. to ensure fair, equitable,

2.
\\
. 
for selection."
afford him 
billet assignment,
FY98-01 selection boards,
FY92 and 95 Intermediate Selection Boards."
petitioner alleges that senior officers, career counselors, and
at least one monitor,
him of fair consideration for command, promotion, and school
selection.
own detailed statement and 24 items of documentary material.

selection to Lieutenant Colonel during the
and selection for school during the

intentionally and unintentionally deprived

the petitioner provides his

To support his appeal,

In his appeal, the

In its proceedings,

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

the PERB concluded that the report is

a.

The Board observes that when the petitioner originally

challenged the fitness report some nine years ago, he only
indicated he wanted some grades changed in Section B, not that
the entire report was either inappropriate or invalid.
observed that the 1991 petition had been generated because the
request for correction was first made to this Headquarters by the
Reporting Senior (Lieutenant Colone

At this juncture,

They also

.

Subj:

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

USMC

the petitioner is now claiming Lieutenant Colonel
never have written the challenged report sin
relieved for the same incident that caused t
relief.
Succinctly stated, Lieutenant Colon
valid Reporting Senior and he remained fully in command for
another five months immediately afterward.

'oner's contention that the Reviewing Officer
as unduly prejudiced by the incident of Lance

b. T
(Colonel
Corporal
prevent
sidered without merit or substantiation.
rather cynical and incredible since the supposed source of the
petitioner's information was via multiples of hearsay (reference
second paragraph on page four of the petitioner's statement
appended to reference (a)).

ecause it was going to allegedly
m being promoted to general, is con-
Such a claim appears

C .

A leader's inherent and sacred leadership responsibility

is for the accountability of those Marines under his or her
The petitioner continues to argue that upon
charge.
of the CAX he was never ordered by Lieutenant Colone
(his Battalion Commander and Reporting Senior) to conduct a
"sight and touch"
Wilson.
challenged fitness report, however, was that he received an order
to "ensure the strict accountability and that all of my Marines
were out of the field."

What he clearly acknowledged in his rebuttal to the

formation upon return from the field to Camp

The fact is that he did neither.

n

d.

Opinion 15 to
(enclosure  (5) to ref
accountability" was a failure on the part of the petitioner.

s JAG investigation
es it clear that "strict

The
Board's position is that the petitioner's responsibility as the

ighting Officers (Colonel
respectively) address the
0 uncertain terms.

ore
nd
er'

Commander in properly accounting for Lance Corporal
under the circumstances surrounding the period covered by
and his failure to properly execute
ess report at issue,

is not an issue to which he has a valid

that responsibility,
argument or challenge.

e.

That the report of record is a second iteration is

immaterial.
submitted his rebuttal,
Given the extreme sensitivity of the issues, the  

The fact is the petitioner acknowledged the report,
and the report was properly adjudicated.
timeline from

2

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

N IN THE CASE OF MAJOR
USMC

the evaluation to when
when Lieutenant Colonel
considered neither
it was sighted by Major
loner was given every
inordinate nor invalidating.
consideration to ensure he had ample opportunity/time to rebut
the Reporting Senior's evaluation and the Reviewing Officer's
review.

f.

The petitioner's implication that the ensuing

courts-martial, the overall publicity of the incident, and the
Commandant's release of the JAG Investigation prejudiced the
report is unsubstantiated speculation.
anything about the fitness report was untrue, unwarranted, or
unduly influenced.
to reference (a) which distributed the JAG Investigation to
Commanding Generals is presumably quite legal since it was
signed by the Staff Judge Advocate to the Commandant.
petitioner to argue the Commandant had no valid part in this
extremely sensitive issue,
to prevent a similar occurrence, is disingenuous at best.

Likewise, the memorandum at enclosure (7)

and especially in initiating measures

There is no proof that

For the

(3.

The part the report played in the petitioner's career

-

proqression/opportunities is definitely problematic. It
- 
certainly did not deter
It very well
of Major.
for schools, to certain
the grade of Lieutenant
validity of the report,

his selection and promotion to the grade
may have contributed to his non-selection
and for selection to
billet assignments,
Colonel.
not it's impact on competitiveness.

the issue is the

Regardless,

h.

Lance Corpora
princi

The 

death was tragic, sad, and
itary leadership mean that

needless.
consequences are suffered by those in authority as a result of
Leaders must be held
improper actions or no action at all.
accountable, and those closer to the action and who can more
immediately influence that action, suffer the more severe
consequences when adverse situations occur.
noncommissioned officers involved were court-martialed; the
officer immedi
Lance Corporal
eventually the
Officer were relieved.
their careers, Lance Corpo

lved was court-martialed and dismissed;
platoon commander was relieved;
Commanding Officer and Executive
Wh

tions terminated all of
as lost forever.

The two immediate

4.

The Board's opinion,

based on deliberation and secret ballot
is that the contested fitness report should remain a part

official military record.

3

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  

(PERB)

N IN THE CASE OF MAJOR
USMC

5.

The case is forwarded for final action.

Deputy Director
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

QUANTICO, VIRGINIA 22 134-5 103

3280 RUSSELL ROA

D

IN REPLY  

REFER TO:
1600
MMOA-4
21 Jun  00

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

(a) MME
Maj
of 21 Jun 00

MAJO
SMC

f
C

Recommend disapprova

1.
of his failures of selection.

request for removal

Per the reference, we reviewe
He failed selection o

2.
petition.
USMC Lieutenant Colonel Selection Boards.
unsuccessfully petitioned the Performance Evaluation Review Board
(PERB) for removal of the C
report of 880601 to 880907.
his failures of selection.

record and
FYOl
0 and 
Subsequently, he

Senior fitness
requests removal of

In our opinion, removing the petitioned report would have

3.
significantly increased the competitiveness of the record.
However, the unfavorable PERB action does not reflect a material
change in the record as it appeared before the FY98,
and 
and fair evaluation by each board.
disapproval of
failures of selection.

FYOl Boards and his record received a substantially complete

Therefore, we recommend
s request for removal of his

FY99, FYOO

 

4.

Point of contact

Marine Corps

Head,
Personnel Management Division

Okficer Assignments Branch