DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 4934-02
12 September 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. You requested that the 
(“above average”) mark for item 14g ( “judgment”) in your fitness report for
1 November 1989 to 31 October 1990 be removed, and that you be granted a remedial
selection board as an officer not having failed of selection to lieutenant colonel.

“AA”

T’

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, donsidered your application on 12 September 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 21 May 2002, and the advisory opinion from the HQMC
Officer Counseling and Evaluation Section, Personnel Management Division, dated
13 June 2002, copies of which are attached. They also considered your rebuttal letters dated
4 June and 16 July 2002.

Documentary material considered by the Board

552a, does permit the individual to request amendment
a.record pertaining to him or her  “which the individual believes is not accurate, relevant,

cart?ful and conscientious consideration of the entire record, the Board found that the
After 
evidence submitted was insufficient to establish probable material error or injustice. In this
connection, they substantially concurred with the report of the PERB in concluding that the
contested mark should stand. They found that subparagraph (d)(2)(B)(i) of the Privacy Act,
title 10, United States Code, section  
of 
timely, or complete ”; however, they found nothing in the Privacy Act to the effect that the
individual has a right to make a rebuttal statement concerning such a record. Since the Board
found no defect in your performance record, they had no basis to recommend granting you
remedial consideration for promotion.
In view of the above, your application has been
denied. The names and  

vote&of the members of the panel will be furnished upon request.

is.*iegretted that the circumstances of your case are
Y9r.1 are entitled to have the Board reconsider

It 
taken. 
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.

such that favorable action cannot be
its decision upon submission of new and

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

s

l .

.

DEPARTMENT OF THE NAV

H E ADQUARTERS UNITED STATES MARINE CORPS
D

3280 RUSSELL ROA

OUANTICO. VIRGINIA 221 34-51 0

Y

3

IN REPLY REFER TO:

1610
MMER/PERB
MAY 
1 2002

2 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

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

USMC

(a)  
(b) 

Maj
MC0 

P1610.7C 

DD Form 149 of   12 Mar 

w/Ch 1-5

02

Per 

1.
with three members present,

MC0 

1610.11C, the Performance Evaluation Review Board,

met on 16 May 2002 to consider Major

petition contained in reference (a).

Removal of the

fitness report for the period 891101 to 901031 (AN) was
Reference (b) is the performance evaluation
requested.
directive governing submission of the report.

The petitioner argues  

that the "above average" mark in Item

2 .
14g (judgment) is, in reality,
It is his
mark of "no" in Item 19 (qualified for promotion).
contention that assignment of said mark required referral of the
report to him for acknowledgement and the opportunity to
respond.

adverse and synonymous with a

In its proceedings,

2; .
both administratively correct and procedurally complete as
The following is offered as relevant:
written and filed.

the PERB concluded that the report is

a.

Not withstanding the petitioner's assertions and
and contrary to his beliefs, a mark of "above

arguments,
average" in Item 
Section B of the report, is not categorized as "adverse."
Additionally,
comments.
without merit.

such marks require no specific justification or
the petitioner's contention is

14g, or any other mark in Items 13 and 14 of

Succinctly stated,

b.

There has been nothing furnished with reference (a) to

show that anything in the challenged report is inaccurate or
unwarranted or that the petitioner somehow rated more than what
ye also emphasize that while a particular
has been recorded.
mark or report may be viewed as reducing competitiveness, the
adversity of any report is in the recorded performance, not in
perceived promotability.

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION

IN THE CASE OF MAJOR

ON BCNR APPLICATION
USMC

The Board's opinion,

4.
vote, is that the contested fitness report should remain a part
0

based on deliberation and secret ballot

official military record.

5.

The case is forwarded for final action.

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

2

DEPARTMENT OF THE NAV

n,..OOUARTERS  UNITED STATES MARINE CORPS

3280 RUSSELL ROA

D

QUANTICO, VIRGINIA 221 34-51 0

Y

3

IN  

REPLY  REFER  

TO:

1600
MMOA-4
13 Jun 02

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS

Subj:

Ref:

MAJOR
SMC

Recommend disapproval of

1.
removal of his failure of

selection.

e

request for

failed selection on the FY02 and FY03 USMC

2
L
Performance Evaluation Review Board (PERB) denied his
request for removal of the Annual fitness report from
891101 to 901031.

el Selection Boards.

Subsequently, the

In our opinion,

s record, as it appeared

3.
before the board, was complete, accurate, and provided a
fair assessment of his performance.
Had the petitioned
report been removed,
competitive,
failures of selection.
"excellent"
and after petitioned report would remain competitive
concerns.

Since the unfavorable PERB action did not change

in items 13 and 14 on the reports both before

the record would have been   more

but not enough so to warrant removal of the

His broken time and markings of

of the record,
we recommend disapproval
equest for removal of his failure of

selection.

Li

lieutenant  Colonel, USMC
Head,
Evaluation Section
Personnel Management Division

Officer Counseling and