DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD
X

2 NAVY ANNE

S

WASHINGTON DC 20370-510

0

BJG
Docket No: 8253-01
5 December 2001

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 returned the contested
fitness report to the reviewing officer for completion of items 

Kl through K3.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 5 December 2001. 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. In addition, the Board
considered the report of the Headquarters Marine Corps Performance Evaluation Review
Board 
(PERB), dated 3 1 October 2001, a copy of which is attached. They also considered
your letters dated 4 October and 15 November 2001.

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 
PEREL Although the Board did not condone the late submission of the
fiitness report at issue, they were unable to find the delay was unjustified, or that it
prejudiced your ability to rebut the report effectively.
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.

In view of the above, your application

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

DEPARTMENT OF THE NAV

HEADQUARTERS UNITED STATES MARINE CORPS
D

3280 RUSSELL ROA

QUANTICO. VIRGINIA 22134-510

Y

3

10,

IN  REPLY REFER
1610
MMER/PERB
13

2001

OCT

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY  
CAPTAI

ON BCNR APPL IC AT IO N I N T HE C AS E OF

OPINION 

'USMC

Form 149 of 10 Aug 01
1-2

P5102.1  (Marine Corps Ground Mishap Reporting)

(c) 

MC0 

Per 

MC0 

1610.11C, the Performance Evaluation Review Board,
1.
with three members present, met on 24 October 2001 to consider
Captai
the fitness report for the period 000707 to 010305 (TR) was
requested.
directive governing submission of the report.

Reference (b) is the performance evaluation

tition contained in reference (a).

Removal of

The petitioner contends the report represents a substantive

2.
injustice and contains administrative/policy errors.
Specifically,

the petitioner argues the following:

The Reporting Senior used information prohibited by

reference (c) in preparing the report

The report contains specific allegations of pending

administrative/judicial proceedings

a.

b.

C .

d.

e.

f.

g

-

Including paraphrased statements from the JAG manual

investigations is precluded by reference (b)

The JAG manual investigation was not completed until

after the ending date of the fitness report

The report identifies a "relief for cause"; however, he

remained in command for nearly three months after the incident

The Reviewing Officer never resolved the issues

identified in his rebuttal as prescribed by reference (b)

The Reviewing Officer failed to complete actions

required by reference  

(b)

Subj:
ADVISORY OPINION ON BCNR APPLICATION IN  

MARINE CORPS PERFORMANCE EVALUATION REVIEW   BOARD 

THE CASE OF CAPTAIN

(PERB)

SMC

To support his appeal,

the petitioner furnishes his own

a copy of the 3 Mar
detailed statement,
Investigation into the death of Corpora
15 March 2001 First Endorsement to the Command,Investigation,
excerpts from a Formal Safety Investigation Report and an NCIS
and a copy of the challenged fitness report.
Interim Report,
the petitioner provided the document
Under separate cover,
charging him with violating Article 92 of the UCMJ, and the
letter from the Commanding General, 2d Marine Division
withdrawing/dismissing said charges and specifications.

and
a copy of the

In its proceedings,

3.
exception, the report is both administratively correct and
procedurally complete as written and filed.
offered as relevant:

the PERB concluded that, with one minor

The following is

a.

The petitioner's relief for cause was clearly and

concisely presented by the Reporting Senior.
sanctity and preservation of the institution of command and that
of its inherent and most essential element, the trust and
confidence in the commander from subordinates and superiors, was
The
breeched  by his failures and mandated his relief."
Reviewing Officer concurred in the overall assessment and
affirmed that the facts of what occurred warranted and supported
the relief for cause.

To wit:

"The

b.

It is apparent the Reporting Senior determined relief
was warranted because those directly responsible for live fire
exercise procedure briefings and safety procedure briefings to
the participants were in turn not properly briefed and
subsequently supervised by the petitioner.
evidently believed those incontrovertible facts were sufficient
to relieve the petitioner.
Once he identified such facts, he
was not somehow obligated to wait for formal signings of
pertinent investigations before acting.
that Maj
tion (enclosure
However, it is reasonable to believe that since the Reporting
Senior was the one who assigned him to conduct the investiga-
tion, he had sufficient knowledge of the facts to relieve the
petitioner three days earlier, on 5 March 2001.

The Board acknowledges
not sign his command JAG Manual Investiga-

(1) to reference (a)) until 8 March 2001.

The Reporting Senior

2

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVI
CAPT

THE CASE OF
USMC

C .

The facts were sufficient for the Reporting Senior to

Therefore,

act as he did.
Ground Safety Mishap investigations were completed.

it is immaterial when the NCIS and
Colonel
id not need them to affirm his command prerogative to
relieve the petitioner, but his Battalion Commander as
Further, there is no proof the Reporting Senior violated
well.
the relative confidentiality intent of ground safety reports as
The main tenant of that directive
outlined in reference (c).
is that safety reports will not be used to determine direct
individual criminal negligence or culpability.
was relieved for his failure to exercise proper command
responsibility,
of life.

not as the person directly responsible for loss

The petitioner

d.

The Reporting Senior's appraisal comments are concise
Contrary to the

and clear as to the petitioner's failings.
there is no proof the Reporting
petitioner's implications,
Senior somehow needed the wording from the investigations or
that he plagiarized those investigations to arrive at his own
recording of the facts.

e.

While the petitioner alleges the Reporting Senior needed

all three investigations to arrive at his conclusions, that was
The Reviewing Officer also states it
apparently not the case.
was the results of the command JAG Manual investigation that
The petitioner further argues the Reviewing
convinced him.
Officer didn't have any first-hand knowledge of his performance
and, therefore, had to rely on briefings and investigations to
arrive at his conclusion. If,
Board discerns no error or injustice.
Officer addressed known facts in his adjudication, which he
apparently did, he accomplished his responsibility as prescribed
in reference (b).

that was the case, the
As long as the Reviewing

in fact,

f.

The fitness report mentions no pending administrative or

Likewise, none is implied.

judicial proceedings.
charges were ultimately withdrawn and dismissed ("with
prejudice") does not somehow invalidate the recording of poor
judgment.
"cause and effect"
fitness report under consideration.
was the petitioner who surfaced pending legal action in his

The UCMJ is a different forum and in this case has no
relationship to the facts as recorded in the

Finally, we observe that it

The fact that

3

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISO
CAPTAI

HE CASE OF
MC

rebuttal.
Reviewing Officer.

That issue was properly addressed and resolved by the

The petitioner is correct that the occasion of the

That is precisely what is
report should be a  
reflected in Item 3a and on all remaining pages/Addendum   Pages

"TR" vice a "DC."

of the official report of record.

g-

f.

The Board notes that Major Genera
Kl, K2, and K3 of

the completion of Items  
initiated action to have the report returned to him for
correction and will ensure the modified version is incorporated
into the petitioner's official record.
viewed as invalidating the entire report.

Such an oversight is not

verlooked
-We have

.

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

4.
vote, is that the contested fitness report should remain a part
of Captain
corrective
sufficient.

icial military record.
tified in subparagraph 3f is considered

The limited

lx
J.

The case is forwarded for

f

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

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