DEPARTMENTOFTHE NAVY

BOARD FORCORRECTION OF NAVAL RECORDS

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

BJG
Docket No: 836-02
15 August 2002

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.

Documentary material considered by the Board

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 8 and 15 August 2002. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this 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 (HQMC) Performance Evaluation
Review Board (PERB), dated 24 January 2002, and the advisory opinion from the HQMC
Officer Assignment Branch, Personnel Management Division, dated 15 February
 
of which are attached. They also considered your letters dated 14 June and 29 July
each with enclosure, and the letter from the reporting senior (RS) dated 30 July 2002.
Finally, they considered the reports of the Judge Advocate General Manual investigation and
the formal safety investigation in your case.

2002, copies

 

2002,

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 concluding the contested fitness report should stand.

The Board noted the substantial evidence to the effect that you were not present when the
mishap occurred, however, they did not consider this a matter invalidating the contested
fitness report. They were unable to find your fitness reporting chain influenced the
investigation of the mishap. They did not  
or reviewing officer (RO). In this regard, they observed that the Budget Worksheet at
enclosure (11) to your application, which you provide to show the command was made aware
of the need for a tire cage, is undated and unsigned; and it does not indicate to whom it was

find any material error in the comments by the RS

submitted. In this regard, they noted that the third sighting officer acknowledged that funding
had been requested for use in purchasing a tire safety cage; but he stated the cage was never
ordered. They were not persuaded the contested fitness report was used as a disciplinary
tool. Concerning the Navy and Marine Corps Achievement Medal awarded you by the RO,
they noted it was for September 2000 to March 2001, after the reporting period in question.
They were unable to find any prohibition against your reporting officials
from the formal safety investigation report in preparing your fitness report. They found the
third sighting officer added no new adverse information requiring referral to you. They
found he adequately addressed the inconsistencies and disagreements between you and the
RO. Finally, they considered it inconsequential that the third sighting officer did not sign
section C of his addendum pages, noting that he did sign section D.

’ use of information

Since the Board found no defect in your performance record, they had no basis to strike your
failure by the Fiscal Year 2002 Chief Warrant Officer 3 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 NAV

Y

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

QUANTICO. VIRGINIA 22134-5103

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ORY OPINION ON B

ON IN THE CASE OF CWO-2

USMC

Subj:

Ref:

s DD Form 149 of 

"19070901",

received 14 November 2001
MC0 

P1610.7E 

w/Ch l-2

(b) 

1610.11C, the Performance Evaluation Review Board,

Per 

1.
with three members present,

MC0 

met on   16 January  2002  to consider
Removal
of the fitness report for the period 000501 to 000811 (TR) was
requested.
directive governing submission of the report.

Reference (b) is the performance evaluation

s petition contained in reference (a).

The petitioner's main contentions are that the fitness

2.
report was an attempt by the chain of command to quickly settle
an unfortunate issue involving the permanent disability, as the
of one the Marines under his charge.
result of a work accident,
He also believes he was unjustly found culpable and believes the
substance of the challenged fitness report was contradicted
JAG Manual Investigation concluded some 214 days subsequent
To support his appeal, the
the ending date of the report.
petitioner furnishes his own detailed statement, along with
enclosures.

24

aby 
to

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.

At the outset, the Board emphasizes that the

Investigating Officer's (IO) findings of fact, opinions, and
recommendations for the JAG Manual Investigation were completed
10 August 2000 (one day prior to the ending date of the fitness
report under consideration).
tion by the Commanding General,
MEF) (with modifications) in essence approved the investigation
on 5 December 2000  
That was 116 days after the IO's investigation report and
endorsement through the chain of command.

The endorsement of that investiga-
I Marine Expeditionary Force (I

(>nclosure  (6) to reference (a) refers).

Given that a Marine

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION ON   BCNR APPLICATION IN THE CASE OF CWO-2

MC

suffered serious and permanent disabling injuries, the  
was both reasonable and understandable.

timeline

b.  A "reasonable person"

can conclude that when the IO

the Reporting Senior and

finished the JAG Manual Investigation,
Reviewing Officer had enough incontrovertible facts upon which
to base the petitioner's relief for cause.
afforded the petitioner due consideration in gathering his own
facts prior to preparing rebuttals to the report, both of which
were signed and dated 18 December 2000.
petitioner's argument,
attempt to settle the matter or unjustly determine culpability.
Not withstanding the requirement to report the petitioner's
unfortunate failing,
of his overall performance and with a most positive "word
picture" in Section I.

nothing in this process was a quick

the report appears to be a fair evaluation

Contrary to the

Both officers

and failing to properly execute that

bf enclosure (6) to reference (a),
In paragraph seven  
I MEF clearly holds the petitioner responsible toward

C .
the CG,
the safety of his Marines,
responsibility. The pertinent verbiage is quoted verbatim:
"This accident was entirely avoidable and was the direct result
of the failure of members of Lance Corporal L
command to instruct Marines on proper procedures and supervise
to ensure those procedures were followed.
same members,
the lack of a tire cage,
of the past and present battalion commanders and the present
Service Company Commander.
Warrant Officer
supervise the
completing assigned tasks in a safe manner.
responsibility.
Staff Sergeant N

own,
r their charge and ensure they were

Chief Warrant  
were properly relieved for

being aware of the significant hazard created by

failed to bring this to the attention

The platoon leadership, from Chief

had a responsibility to train and

Additionally, those

Accordingly,

's  chain of

The
Offi

cause."

d.

The report was General Officer sighted by the Deputy CG,

I MEF, now Major Genera

The General not only
e evaluations by Major Rowe and Lieutenant Colonel
ased on what was revealed by the JAG Manual

Investigation of 10  
subsequent investigation.
The petitioner is correct that
paragraph 5005 of reference (a) requires the Third Sighting
Officer to sight all adverse fitness reports, and there is no

eugust- 2000, but also on the facts of a

2

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF CWO-2

reason to believe Major Genera
sight the entire report with a
however, no requirement for th
all Addendum Pages.
indicates he has read the petitioner's rebuttal and the
statements of both reporting officials,
Section D of both of his Addendum Pages.
accomplished per the provisions of reference (b).

In his statement, Major General

and he correctly signed

Everything has been

e.

Given the serious nature of the adversity reported in
the fitness report under consideration, the late resolution is
not considered inordinate, inappropriate, or in anyway an
invalidating factor.
was given to ensure the ultimate documentation of the facts was
correct.

To the contrary -- all due consideration

f.

The Reporting Senior's letter at enclosure (1) to

reference (a) was not issueh in support of a request to
eliminate the challenged fitness report.
endorsement to the FY02 CWO Selection Board concerning the
petitioner's still credible potential and worth to the Marine
Corps.

Rather, it was an

g-

All of the petitioner's arguments taken into

consideration, and acknowledging he was not the only person
culpable, as a 
requisite formal schooling,
Simply stated, he failed,
(a) proves to the contrary.

16-year  professional Marine engineer with

he knew his responsibilities.

and nothing included with reference

4.
V
0

The Board's opinion,

based on deliberation and secret ballot

contested fitness report should remain a part
official military record.

3

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

THE CASE OF CWO-2

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

4

DEPARTMENT OF THE NAV

Y

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

QUANTICO, VIRGINIA 221 34-51

0 3

1600
MMOA-4
15 Feb 02

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

IT1
C

Recommend disapproval of
1.
removal of his failure of se

the case of
MC of  7 Feb 02.

s implied request for

Per th

2.
petition.
Warrant Of
Evaluation
the Transfer fitness report of 000501 to 000811.

e reviewe
failed se
n Board.
Subsequently, the Performance
(PERB) denied his request for removal of

record and
MC Chief

C
compl

as it appeared before

In our opinion,

3.
the boards, was  
Had the petitioned report been
assessment of his performance.
removed, the record would have been   more competitive, enough so
to warrant removal of the failure of selection.
unfavorable  PERB action did not change t
the record, we recommend disapproval of
for removal of his failures of selection.

nd provided a fair

Since the

4.

POC

Head, Officer Assignment Branch
Personnel Management Division