DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

BJG
Docket No: 6123-02
15 August 2002

From:
To:

Subj 

:

Chairman, Board for Correction of Naval Records
Secretary of the Navy

REVIEW OF NAVAL RECORD

Ref:

(a) Title 10 U.S.C. 1552

Encl:

(1) DD Form 149 dtd 29 Mar 02 w/attachment
(2) HQMC MMER/PERB memo dtd 3 Jul 02
(3) HQMC MMOA-4 memo dtd 27 Jun 02
(4) Subject ’s naval record

K, “Reviewing Officer [RO] Comments. ” Copies of these reports

Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,

1.
(l)., with this Board requesting, in effect, that the
filed written application, enclosure  
applicable naval record be corrected by removing therefrom the entire fitness report for
12 July 1997 to 31 July 1998, and modifying the report for 1 August 1998 to 14 May 1999
by removing the section  
(2), the
are in enclosure (1) at Tabs A and B, respectively.
Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) has
directed that the report for 12 July 1997 to 31 July 1998 be modified by removing the
“Exercises acceptable judgment and
following from the reporting senior (RS) comments:
leadership.” Petitioner further requested removal of his failure of selection before the Fiscal
Year (FY) 2003 Lieutenant Colonel Selection Board, so that he will be considered by the
selection board next convened to consider officers of his category for promotion to the grade
of lieutenant colonel as an officer who has not failed of selection to that grade.

As indicated in enclosure  

2. The Board, consisting of Messrs. Kastner, Pfeiffer and Schultz, reviewed Petitioner
allegations of error and injustice on 8 August 2002, and pursuant to its regulations,
determined that the limited corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.

’s

3. The Board, having reviewed all the facts of record pertaining to Petitioner
of error and injustice, finds as follows:

’s allegations

a. Before applying to this Board, Petitioner exhausted all administrative remedies which

were available under  

existini law and regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

C.

Petitioner received the contested fitness report for 12 July 1997 to 31 July 1998 (Tab
His observed marks were

A to enclosure (1)) while serving in his current grade of major.
straight  “OS” (outstanding), the highest possible mark, except in item
where he was marked  
to the service, ” category, he was marked  “OS, 
was compared with him.
Section C, the RS comments, was highly complimentary in all
respects, except for the following, whose removal has been directed by the HQMC PERB:

“EX” (excellent), the second highest mark. In item 15, 

” but ranked below the one other major who

14g, “ judgment,”
 

“general value

Exercises acceptable judgment and leadership.

The RO concurred with the item 15 mark and peer ranking the RS assigned Petitioner, and he
added highly complimentary comments, except for the following:

-- [Petitioner ’s] unit presents him with many unique challenges which he is
making strides to meet.

Petitioner argued that both of the above quotes are adverse, and that he should have been
given the opportunity to submit a rebuttal statement.
significant because neither the RS nor RO made recommendations regarding his promotion or
advancement. In fact, block 19 of the-report at issue, 
”
“yes. 

He maintains these comments are more

“qualified for promotion, ”  is marked

d.

Petitioner received the report for 1 August 1998 to 14 May 1999 (Tab B to enclosure

(l)), in which he is contesting only section K, while serving as a major. In block K.3,
“comparative assessment, ”the RO marked the third lowest of eight blocks.
highly complimentary comments, except for the following:

The RO added

- Bottom  
- Promote with peers.

l/3 of 21 Battery I-I [Inspector-Instructor] in Reg[imen]t.

Petitioner argued that the first comment quoted above is adverse, and that it should have been
referred to him so he could submit a rebuttal statement.

e. Enclosure (2) is the report of the HQMC PERB in Petitioner

’s case. The report
’s request had limited merit. The report stated in

reflects the PERB decision that Petitioner
pertinent part as follows:

3. In its proceedings, the PERB concluded that, with one minor exception,
both reports are administratively correct and procedurally complete as
written and filed. The following is offered as relevant:

.
. . 

2

[Pletitioner, in part, concerning the phrase in

a. The [PERB] agrees with the  
Section C of [the report for 12 July 1997 to 31 July
The sentence not only  “damns with faint praise ”, but it is also totally
inconsistent with the marks of  “outstanding” of Items 13d (handling officers),
13e (handling enlisted personnel), and 14j (leadership). The [PERB] does not,
however, find that complete removal of the report is warranted. Instead, they
have directed elimination of that single sentence (i.e., 
judgment and leadership. 

“Exercises acceptable

19981 to which he objects.

‘I).

 

b. The [PERB] finds nothing  “adverse”, as that term in [sic] defined in [the
applicable fitness report orders], in the  
[Pletitioner (and others) may view the verbiage
challenged reports. While 
(or lack thereof) as  “noncompetitive”, the PERB is haste [sic] to point out
that  “adverse” and  “noncompetitive” are not synonymous. Consequently,
[Pletitioner was correctly not afforded an opportunity to append
statements of rebuttal.

[RO]s’ comments in either of the

f.

Enclosure (3) is the advisory opinion from the HQMC Officer Counseling and

Evaluation Section, Personnel Management Division (MMOA-4) recommending approval of
Petitioner’s request to remove his failure of selection before the FY 2003 Lieutenant Colonel
Selection Board. This advisory opinion includes the following:

. . .

3. In our opinion, the favorable PERB action marginally enhances the
competitiveness of the record. However, 
[PetitionerI’s record contains
others [sic] areas of competitive concern that may have led to his failure
of selection.

 

[PetitionerI’s performance as an I&I can be

a. I&I Staff Comments.
characterized as mid-pack at best. His [RO] comments during [sic] two
reports during the period comment, “Middle one third of 14 Major I&Is, ”
and  “Bottom one third of 21 Btry [Battery] I&Is.
distribution in his final I&I report has no officers marked below him,
two officer [sic] marked with him, and thirty-three officers marked above
him.

” [Petitioner ’s RO]

 

 

[PetitionerI’s rankings are eight marked

b. Value and Distribution.
above and twenty-one marked below as a First Lieutenant.
are twenty-two above and twenty-six below as a Captain. His rankings
are three above and zero below as a Major.
command is twelve marked above and thirteen below. His total value
and distribution is thirty-three marked above and forty-seven marked
below.

[PetitionerI’s  distribution in

His rankings

4. In summary, the favorable PERB action marginally enhances the
[PetitionerI’s  record. The record does contain
competitiveness of  
other areas of competitive concern that may have contributed to his
failure of selection. However, because the removed comment may
have also contributed to the failure of selection, we recommend
[PetitionerI’s  request for removal of his failure of
approval of  
selection.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board finds an injustice
warranting partial relief, specifically, complete removal of the fitness report for 12 July 1997
to 31 July 1998 and removal of Petitioner ’s failure of selection to lieutenant colonel.

(2), the Board finds that the contested fitness report

Contrary to the PERB report at enclosure  
for 12 July 1997 to 31 July 1998 should be completely removed. They find that the PERB
did not go far enough.
In this connection, they conclude that both the  “EX” mark in
“judgment” and the two-of-two peer ranking were tainted by the comment PERB has already
directed removing. They did not consider it appropriate to remove the mark and ranking,
leaving the remainder of the report in the record, as they felt the report without these key
elements would be fatally incomplete.

The Board substantially concurs with the PERB in finding that section
for 1 August 1998 to 14 May 1999 should stand.

 

K of the fitness report

Finally, the Board finds that Petitioner ’s failure of selection by the FY 2003 Lieutenant
Colonel Selection Board should be removed. In this regard, they particularly note the
favorable advisory opinion from HQMC MMOA-4 regarding the impact of the comment
PERB has directed removing from the contested report for 12 July 1997 to 31 July 1998.
They further find that removing the entire report, which would eliminate the 
“judgment” and the two-of-two ranking, could have enhanced his competitiveness still more.

“EX” mark in

In view of the above, the Board recommends the following limited corrective action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected by removing the following fitness report

and related material:

Date of Report

Reporting Senior

9 Aug 98

Lt
*.

4

Period
From

of Report
To,

C

12 Jul 97

31 Jul 98

b. That there be inserted in his naval record a memorandum in place of the removed

report, containing appropriate identifying data concerning the report; that such memorandum
state that the report has been removed by order of the Secretary of the Navy in accordance
with the provisions of federal law and may not be made available to selection boards and
other reviewing authorities; and that such boards may not conjecture or draw any inference as
to the nature of the report.

C. That the magnetic tape maintained by Headquarters Marine Corps be corrected

accordingly.

d. That Petitioner ’s naval record be corrected so that he will be considered by the

earliest possible selection board convened to consider officers of his category for promotion
to lieutenant colonel as an officer who has not failed of selection for promotion to that grade.

e. That any material or entries inconsistent with or relating to the Board

recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s

’s record and

f.

That any material directed to be removed from Petitioner

to this Board, together with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross reference being made a part of
Petitioner’ 

s naval record.

’s naval record be returned

g. That the remainder of Petitioner ’s request be denied.

4.
It is certified that a quorum was present at the Board
the foregoing is a true and complete record of the Board
matter.

’s review and deliberations, and that
’s proceedings in the above entitled

ROBERT D. ZSALMAN
Recorder

+!!- 
JONATHAN S.  
Acting Recorder

/f? 
RUSKIN

PA-&/

5. The foregoing report of the Board is submitted for your review and action.

W. DEAN PF

(Manpower and R&serve Affairs)

-

5

DEPARTMENT OF THE NAV

HEADQUARTERS UNITED STATES MARINE CORPS
D

3280  RUSSELL ROA
QUANTICO, VIRGINIA 221 34-51 0

Y

3

IN REPLY REFER TO:

1610
MMER/PERB
JUL  
zoo2

0 3  

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) Maj
(b) 
(c) 

MC0 
MC0 

PI610.7D 
P1610.7E 

DD Form 149 of 29 Mar 02

w/Ch 1-5
w/Ch 1-2

Encl:

(1) CMC Advisory Opinion

1600 MMOA-4 of 27 Jun 02

Per 

MC0 

1610.11C, the Performance Evaluation Review Board,

1.
with three members present,
Major
indicated was requested on the following fitness reports:

s petition contained in reference (a).

met on 19 June 2002 to consider

Action as

a.

Report A

- 970712 to 980731 (DC). Removal in its

entirety.

Reference (b) applies.

b.

Officer's Certification and comments.

- 980801 to 990514 (TR). Removal of Reviewing
Reference (c) applies.

Report B

With specific regard to Report A, the petitioner

The petitioner contends that the Reporting and Reviewing

2.
Officers' comments on Report A and the Reviewing Officer's
assessment and comments on Report B could be construed as
adverse.
believes the comments of both officers are exacerbated since
neither provided any recommendations for promotion or
It is the petitioner's position that he should
advancement.
have been given and opportunity to acknowledge and respond to
both appraisals.

.

In its proceedings,

3.
exception, both reports are administratively correct and
procedurally complete as written and filed.
offered as relevant:

the PERB concluded that, with one minor

The following is

a.

The Board agrees with the petitioner, in part,

concerning the  
"damns with faint praise", but
objects.
it is also totally inconsistent with the marks of "outstanding"

phras; in Section C of Report A to which he

The sentence not only

Subj:

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

USMC

of Items 13d (handling officers), 13e (handling enlisted
personnel),
find that complete removal of the report is warranted.
they have directed elimination of that single sentence (i.e.,
"Exercises acceptable judgment and leadership.").

and 14j (leadership).

The Board does not, however,

Instead,

b.

The Board finds nothing "adverse", as that term in

in the Reviewing Officers'

defined in references (b) and (c),
comments in either of the challenged reports.
petitioner (and others) may view the verbiage (or lack thereof)
as "noncompetitive",
"adverse" and "noncompetitive" are not synonymous.
Consequently, the petitioner was correctly not afforded an
opportunity to append statements of rebuttal.

the PERB is haste to point out that

While the

The Board's opinion,

0
^ .
v
The limited
0
corrective action identified in subparagraph 3a is considered
sufficient.

based on deliberation and secret ballot
contested fitness reports should remain a part
s official military record.

c3 .

The enclosure is furnished to assist in adjudicating Major
request for the removal of his failure of selection
e of Lieutenant Colonel.

6.

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

1600
MMOA-4
27 Jun 02

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BCNR PETITION FOR  
USMC

MAJ

Ref:

(a)

of 21 Jun 02.

Recommend approval of
1.
his failure of selection.

he case of

SMC

's request for removal of

Per the

2.
petition.
Lieutenant
Performance Evaluation Review Board  
comment from the Direction of
period from 970712 to 980731.
his failure of selection.

iewe
iled selection on the
Board.

s record and
FY03 USMC

He successfully petitioned the
(PERB) to remove a Section C

tness report for the
equests removal of

3.

In our opinion, the favorable PERB  

faction  marginally
e competitiveness of the record. However, Major
ecord contains others areas of competitive concern

that may have led to his failure of selection.

a.

I&I  Staff Comments.

‘s performance as

  a n

His Reviewing:'
I&I can be characterized as
Officer comments during two reports during the period   comment,
"Middle one
Btry I&Is."
his final I&I fitness report has no officers marked below him,
and thirty-three officers marked
two officer marked with him,
above him.

I&Is," and "Bottom one third 
Reviewing Officer distribution in

bf 21

b.

Value and Distribution

.

Maj

eight marked above and twenty-one mar
Lieutenant
below as a
as a Major
marked above and  
distribution is thirty-three marked above and forty-seven marked
below.

wenty-two above and twenty-six
gs are three above and zero below
istribution in command is twelve

thir&een  marked below.

His total value and

rankings are
First

ENCL 

(1)

the favorable PERB action marginally enhances

record.

The record does

ive concern that may have

However, because the

request for

Subj:

MAJ
SMC

In summary,

4.
the competitiveness
contain other areas o
contributed to his failure of selection.
removed comment may have also co
selection, we recommend approval
removal of his failure of

selection.

5.

POC is Maj

Head, Officer Counseling and
Evaluation Section
Personnel Management Division

2