DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

BJG
Docket No: 7468-02
13 September 2002

From:
To:

Sub.j :

Ref:

Encl :

Chairman, Board 
Secretary of the Navy

for Correction of Naval Records

CAP
REVIEW OF NAVAL RECORD

USMCR (AR

(a) Title 10  

I_J.S.C. 

1552

(1) DD Form 149 dtd 15 May 02 w/attachments
(2) HQMC MMER/PERB memo dtd 14 Aug 02
(3) Subject’s ltr dtd 30 Aug 02
(4) HQMC RA memo dtd 12 Aug 02
(5) Memo for record dtd 3 Sep 02
(6) Subject’s naval record

Pursuant to the provisions of 

referknce (a), Subject, hereinafter referred to as Petitioner,

1.
filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be
corrected by removing the fitness reports for 1 June to 31 October 1996 and 1 November to
6 December 1996, copies of which are in enclosure (1) at Tabs A and B, respectively. As
indicated  in enclosure 
(2), the Headquarters Marine Corps (HQMC) Performance Evaluation
Review Board (PERB) has directed removing the contested fitness report for 1 June to
31 October   1996. Petitioner further requested removing his failure of selection before the
Fiscal Year 2003 Marine Corps Reserve (Active Reserve) Major Selection Board, so as to be
considered by the selection board that next convenes to consider officers of his category for
promotion to the grade of major as an officer who has not failed of selection to that grade.

Board, consisting of Ms. Davies and Messrs. Nicholson and Schultz, reviewed
2. The 
Petitioner’s allegations of error and injustice on 12 September 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.

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

available under existing law and regulations within the Department of the Navy.

.

b. Regarding the remaining contested fitness report for 1 November
6 December 1996, Petitioner contends that this report is adverse, but was
as it should have been, for the opportunity to make a rebuttal; that the comments and marks
are inconsistent; that this report was submitted at the same time as the preceding report at
issue, giving him no time to improve; and finally, that this report, in which he was ranked
below all six of the other captains compared with him, was an attempt to help the careers of
the other officers.

to
not referred to him,

C.

Enclosure 

(2), the report of the HQMC PERB in Petitioner

’s case, reflects their

decision to grant removal of the report for 1 June to 31 October 1996, but deny relief
respecting the report for 1 November to 6 December 1996. They found the latter report was
not adverse; that the marks and comments were not inconsistent; and that Petitioner had failed
to demonstrate the report represented an effort to bolster the careers of other officers.

d.

Petitioner ’s letter at enclosure (3) rebutted the PERB decision to

fitness report for 1 November to  6 December 1996.
report is adverse and that he was not given time to improve. He argued that the comment
“His efforts in legal management continue to show improvements
PERB action removing the preceding report.
contested report was intended to help other officers, he alleged that the other six captains
ranked above him were senior to him, and that the majority had the same military
occupational specialty (MOS) as the reporting senior.

 He reiterated his contentions that this

Concerning his contention that the remaining

deny removal of the

 

” effectively nullifies the

e.

In correspondence attached as enclosure

(4), as clarified by the memorandum for the

 

(5), the HQMC office having cognizance over the subject matter of
 
record at enclosure
Petitioner ’s request to strike his failure of selection for promotion has commented to the
effect that this request has merit and warrants favorable action, in light of the PERB decision
to remove the fitness report for 1 June to 31 October 1996.

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosures (4) and
limited relief, specifically, removal of Petitioner

(5), the Board finds the existence of an injustice warranting
’s failure of selection for promotion.

 

(2), the Board concludes that
In substantial concurrence with the PERB report at enclosure
Petitioner ’s fitness report for 1 November to 6 December 1996 should stand. They are unable
to find he was not counseled during the reporting period about any deficiencies that may have
been perceived.
recipient may not recognize it as such when it is provided. They do not consider the
comment about his continued improvement in legal management refers to or reveals the
content of the fitness report PERB directed removing.
his peer ranking reflected bias in favor of the other captains.

In this regard, they observe that counseling takes many forms, so the

Finally, they are not convinced that

 

2

In view of the above, the Board directs the following limited corrective action.

RECOMMENDATION:

a.

That Petitioner ’s 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 major
as an officer who has not failed of selection for promotion to that grade.

b. 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

C.

That any material directed to be removed from Petitioner

’s naval record be returned

to the 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.

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

4.
Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was
present at the Board ’s review and deliberations, and that the foregoing is a true and complete
record of the Board ’s proceedings in the above entitled matter.

ROBERT D. ZSALMAN
Recorder

ky$_&t\ 

A3 -
;.
JONATHAN S.  
Acting Recorder

‘5&/ ” 

4 
RUSKIN

4 

_-.+.=4-A_

Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of

5.
the Board for Correction of Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.

Executive Director

3

HEADQUARTERSUNITEDSTATESMARINECORPS

DEPARTMENT OF THE NAV
3280  RUSSELL ROA
 

QUANTICO, VIRGINIA

D

22 134-S 103

Y

REP,_,‘REl=ER  TO:

,N 
1610
MMER/PERB
AU\; 
20&?

$ 1 

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

USMC

(a) Captai
(b) 

MC0 

P1610.7D 

DD Form 149 of   15 May 02

w/Ch 1

Encl:

(1) CMC Advisory Opinion 1600  

MMOl-4 of 12 Aug  

02

MC0 

Per 

1610.11C, the Performance Evaluation Review Board,

_.
with three members present,
Captai
of the following fitness reports was requested:

etition contained in reference (a).

met on 22 July 2002 to consider

Removal

a.

b.

Report A

- 960601 to 961031 (GC)

Report B

- 961101 to 961206 (EN)

Reference (b) is the performance evaluation directive governing
the submission of both reports.

The petitioner contends that both reports are adverse, yet

2.
he was not afforded an opportunity to comment on either.
specific regard to Report B, the petitioner argues that the
report was  
officersll against whom he was rated (Item 15.
challenges the marks of "excellent" in Section B as de   facto
adverse.

. an attempt to help the career of the other

He also

\\. 

. 

With

3.

In  its  proceedings

, the PERB concluded that:

The removal of Report A is warranted and has been

directed.

a.

b.

Report B is both administratively correct and

procedurally complete as written and filed.

5

(1) The Board finds no compelling reason to believe that

the petitioner's placement in Item 15 of Report B was an outward
attempt by the Reporting Senior to bolster the careers of the

Subj:

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

USMC

other six officers who received an observed mark in that
category.
Senior, any "insight" into an individual's placement in Item 15
is viewed as nothing more than speculation.

Unless specifically explained by the Reporting

(2) Simply stated,

there is absolutely nothing "adverse'"

Likewise, there is no inconsistency between the

in Report B.
marks assigned in Section B and the comments contained in
Section C.
and accomplishment of duties,
by the petitioner.

The overall report portrays successful performance
albeit not to the degree desired

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

4.
vote, is that Report B should remain a part of Captain

fficial military record.

5.

6.

The enclosure is  

furnis.hed to assist in adjudicating Captain

quest to remove his failure of selection.

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

HEADQUARTERS UNITED STATES MARINE CORPS
D

3280  RUSSELL ROA

QUANTICO.  

VIRGINIA  22  

134-S  

Y

103

RESERVE AFFAIRS DIVISION COMMENT on Head, PERB  
of 24 Jul 02

ltr 1610

Subj 

:

CORRECTION TO NAVAL RECORD IN THE CASE OF

Ref:

(a) Your 

ltr dtd 24 July 2002

After careful review,

1.
actions requested within the reference.

this department concurs with the

In addition to the actions

2.
the reference, Captai
failure of selection,
draw
Capta
through MMPR.

  requested by the PERB within
equests removal of his
TFS does not indicate any

But, in pursuit of his intent, we recommend
submit for remedial promotion consideration

the fitness report i

d

s

f

n

t

3 . At the time Captain-ailed of selection, he ha
evaluations that spanned over eight years, however two o
those years were inactive service and are not credited toward
satisfactory SMCR service
question would have a greater&impact on his career if i
remained in his record

. As such,

0,  a3s‘ 

\3t

.

he
Point of contact is Lieutenant Colo

4 .

n

By  directio

n

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR)

PERFORMANCE SECTION
2 NAVY ANNEX, SUITE 2432
WASHINGTON, DC 20370-5100

TELEPHONE: (703) 614-2293 OR DSN 224-2293
FACSIMILE: (703) 614-9857 OR DSN 224-9857

DATE: 

3SEP02

DOCKET NO:

PETITIONER (PET): CAPT J.

USMCR

PARTY CALLED/AGENC

USMC, HQMC RA

TELEPHONE

WHAT I SAID: I ASKE
PERB REMOVED WHEN HE SAID THE 
RECOMMENDATION HIS OFFICE  ‘HAD RE PET ’S REQ TO REMOVE HIS FOS.

“REPORT IN QUESTION ”, AND WHAT

WAS REFERRING TO THE  

FITREP THE

WHAT PARTY SAID:
THE 
RECOMMENDATION RE REMOVING PET ’S FOS.

FITREP THE PERB REMOVED, AND THAT RA WAS MAKING A FAVORABLE

FORMED ME THAT HE WAS REFERRING TO

BRIAN J. GEORGE