DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

Y

2 NAW ANNEX

WASHINGTON, 

D.C. 203704100

BJG
Docket No: 8305-00
2 February 

2001

SMC

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 1 February 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 
Review Board 
Officer Assignment Branch, Personnel Management Division (MMOA-4), dated
24 January 2001, copies of which are attached.

(HQMC) Performance Evaluation
20, and the advisory opinion from the HQMC

(PERB), dated 6 December 

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. Since the Board found no defect in your performance record,
they had no basis to strike your failure by the Fiscal Year 2002 Lieutenant Colonel Selection
Board.
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

Enclosures

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE

3280 RUSSELL ROA
 

QUANTICO, VIRGINIA 22

D

134-5 

 

CORPO

103

IN 
Rt?PW  REFER TO:
1610
MMER/PERB
= 
6 

OfC 

MN

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ATION IN THE CASE OF MAJOR

USMC

Ref:

(a) 
(b) 

Majo
MC0 

P1610.7C 

DD Form 149 of 7 Sep 00

w/Ch l-6

1610.11C, the Performance Evaluation Review Board,

met on 29 November   2000 to consider

Per 

MC0 

1.
with three members present,
Major
of th
requested.
governing submission of the report.

Removal
petition contained in reference (a).
report for the period 940809 to 940902 (CH) was

Reference (b) is the performance evaluation directive

It is his position that he

The petitioner argues that the report should not have been

2.
processed as an "adverse" evaluation.
was never provided with any documentation, other than the report
itself, nor was there a determination made as to how a  
alcohol content (BAC) is defined a driving "under the influence
The petitioner cites the Manual for Courts-Martial
of alcohol."
(MCM), 1994, and the elements of Article 111 of the Uniform Code
of Military Justice (UCMJ),
mentions "driving under the influence of alcohol" as constituting
an offense.
and in the final analysis,
or commit a comparable civilian offense.
3.
both administratively correct and procedurally complete as
The following is offered as relevant:
written and filed.

He cites further provisions concerning BAC issues,
believes he did not violate the UCMJ

the PERB concluded that the report is

in pointing out that neither document

In its proceedings,

.08 blood

a.

In so doing, we must presume that he passively

At the outset, the Board emphasizes that the petitioner
was provided with and ignored opportunities by both the Reporting
Senior and this Headquarters to respond to the adverse nature of
the report.
concurred in the accuracy of the recorded information and
indicated he had no extenuating or mitigating circumstances to
present.
September  1994 that he should have raised the issues which he now
surfaces in reference (a).
fact lacks timeliness and credibility.
appeal process   is not a substitution for proper resolution of an

It was when the petitioner acknowledged the report in

To do so some six years after the

We also stress that the

. 

’

Subj:

.

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

SMC

adverse report at the time the report is prepared.
5007 of reference (b) applies.

Paragraph

b.

One of the options under the UCMJ was for the Commanding

Officer with non judicial punishment  
handle the offense in an administrative manner vice prosecuting
under the UCMJ.
appropriate administrative action.
to prove his  
the chosen course of action.
that the petitioner was not administered a BAC, or that the BAC
was faulty.

. 08 BAC was not an uncontroverted fact had NJP been
Likewise, we find nothing showing

Clearly the challenged fitness report is an

(NJP) authority to choose to

Further, the petitioner fails

C .

A 

.08 BAC was,

at the time of the challenged report, and
now, the basis for prosecution before a Federal Magistrate in the
State of California (where the incident occurred).
extracts from the MCM provided by the petitioner define drunk or
impaired as 
"... any intoxication which is sufficient to impair
the rational and full exercise of the mental or physical
facilities."
.08 BAC is recognized by the preponderance of
jurisdictions (Federal, State, and County) as being "under the
influence."

The very

A 

The Board's opinion,

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

based on deliberation and secret ballot

official military record.

5

5.

The case is forwarded for final action.

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

Divis-ion

2

i

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

’

,/ 

’.. 

3280  RUSSELL ROAD
 

QUANTICO.  VIRGINIA 22

134-S  

102

\

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR  

NAVAL RECORDS

IN REPLY REFER TO.

1600
MMOA-4
24 Jan 01

CORREC'tION  OF

Subj:

Ref:

MAJOR.
SMC

(a) MMER Request for 

Maj
of 17 Jan 01

Adviso_rya.,_Opinion in the case of

MC

Recommend disapproval

1.
o
of his failure of selection.

: request for removal

Per the reference, we review

2.
petition.
Selection Board.
Performance Evaluation Review Board (PERB) for removal of the

He failed selection o
Subsequently,

he unsuccessfully petitioned the

record and

ieutenant Colonel

e

ting Senior fitness report of 940809 to 940901.
requests removal of his failure of selection.

In our opinion, removing the petitioned report would have

3.
increased the competitiveness of the record.
unfavorable PERB action does not reflect a material change in the
record as it appeared before the FY02 Board and his record
received a substantially complete and fair eva
Board.
of
request for removal of his failure of selection.

Therefore, we recommend disapproval

However, the

i

of  contact is Lieutanant Colo

n

.

Marine Corps

Head, Officer Assignment Branch
Personnel Management Division

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

3200RUSllELLROAD

QUANTICO, VIRGINIA 22

 

134-5  103

IN REPLY REFER  

TD.

1610
MMER/PERB
6 
; 

OEC 

MU

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

TION IN THE CASE OF
USMC

(a)
(b)

DD Form 149 of 7 Sep  00
Ch l-6

Per 

1.
with three members present,

MC0 

161O.llC, the Performance Evaluation Review Board,

met on 29 November 2000 to consider
Removal
petition contained in reference (a).
eport for the period 940809 to 940902 (CH) was

requested.
governing submission of the report.

Reference (b) is the performance evaluation directive

It is his position that he

The petitioner argues that the report should not have been

2.
processed as an "adverse" evaluation.
was never provided with any documentation, other than the report
itself, nor was there a determination made as to how a  
alcohol content (BAC) is defined a driving "under the influence
The petitioner cites the Manual for Courts-Martial
of alcohol."
(MCM), 1994, and the elements of Article 111 of the Uniform Code
in pointing out that neither document
of Military Justice (UCMJ),
mentions "driving under the influence of alcohol" as constituting
an offense.
and in the final analysis,
or commit a comparable civilian offense.

He cites further provisions concerning BAC issues,
believes he did not violate the UCMJ

.08 blood

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

In so doing, we must presume that he passively

a . At the outset, the Board emphasizes that the petitioner
was provided with and ignored opportunities by both the Reporting
Senior and this Headquarters to respond to the adverse nature of
the report.
concurred in the accuracy of the recorded information and
indicated he had no extenuating or mitigating circumstances to
present.
It was when the petitioner acknowledged the report in
September  1994 that he should have raised the issues which he now
surfaces in reference (a).
fact lacks timeliness and credibility.
appeal process is not a substitution for proper resolution of an

To do so some six years after the

We also stress that the

Subj:

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

SMC

adverse report at the time the report is prepared.
5007 of reference (b) applies.

Paragraph

b.

One of the options under the UCMJ was for the Commanding
Officer with non judicial punishment (NJP) authority to choose to
handle the offense in an administrative manner vice prosecuting
under the UCMJ.
appropriate administrative action.
to prove his  
the chosen course of action.
that the petitioner was not administered a BAC, or that the BAC
was faulty.

. 08 BAC was not an uncontroverted fact had NJP been
Likewise, we find nothing showing

Clearly the challenged fitness report is an

Further, the petitioner fails

C .

A 

.08 BAC was,

at the time of the challenged report, and
now, the basis for prosecution before a Federal Magistrate in the
State of California (where the incident occurred).
extracts from the MCM provided by the petitioner define drunk or
"... any intoxication which is sufficient to impair
impaired as 
the rational and full exercise of the mental or physical
.08 BAC is recognized by the preponderance of
facilities."
jurisdictions (Federal, State, and County) as being "under the
influence."

The very

A 

4.
vo
of

5.

The Board's opinion,

based on deliberation and secret ballot
ontested  fitness report should remain a part
official military record.

The case is forwarded for final action.

U.S..Marine  Corps

Colonel,
Deputy Director
Personnel Management Divis‘ion
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

2

DEPARTMENT OF THE NAVY

HEADQUARTER6 UNITED STATES

3280 RUSSELL ROA

QUANTICO, VIRGINIA 22

 

134-s 

103

 

MARINE  CORPS
D

’

TO:

IN REPLY REFER  
1600
MMOA-4
24 Jan 01

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR  

NAVAL RECORDS

CORREC'tION  OF

Subj:

Ref:

(a) 

MMER
Major
of 17 Jan 01

MAJO
USMC

Recommend disapproval

1.
of his failure of selection.

of,

ase of
SMC

request for removal

Per the reference, we reviewe

2.
petition
Selection Board.
Performance Evaluation Review Board (PERB) for removal of the

He failed selection on

he unsuccessfully petitioned the

record an
eutenant Colonel

Subsequently,

d

d

.

ting Senior fitness report of 940809 to 940901.
requests removal of his failure of selection.

In our opinion, removing the petitioned report would have

3.
increased the competitiveness of the record.
unfavorable PERB action does not reflect a material change in the
record as it appeared before the FY02 Board and his record
received a substantially complete and fair evaluation by the
Board.
request for removal of his failure of selection.

we recommend disapproval of Major Norcross'

However, the

Therefore,

of contact is Lieutanant Colonel

Colonel, U. S. Marine Corps
Head, Officer Assignment Branch
Personnel Management Division