DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVYANNEX

WASHINGTON ’DC 20370-510

0

BJG
Docket No: 7967-02
11 October 2002

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj: G Y

REVIEW OF NAVAL RECORD

Ref: (a)

Title 10 U.S.C. 1552

Encl:

(1)
(2)
(3)
(4)

DD Form 149 dtd 31 May 02 w/attachment
HQMC 
MMEWPERB memo dtd 9 Sep 02
Memo for record dtd 9 
Subject’s naval record

Ott 02

(I), with this Board requesting, in effect, that the

(2), the

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed written application, enclosure 
applicable naval record be corrected by removing his fitness report for 1 October 2000 to
3 1 July 2001, a copy of which is at Tab A to enclosure (1). As shown in enclosure 
Headquarters Marine Corps 
directed modification of this report by removing the following reporting senior (RS)
comment: “Received 6105 [service record book page 11 (“Administrative Remarks (1070)“)
counseling entry] for POV 
” Petitioner
also requested removal of his failures of selection by the Calendar Year (CY) 2001 and 2002
Master Sergeant (pay grade E-8) Selection Boards, and remedial consideration for promotion.

(HQMC) Performance Evaluation Review Board (PERB) has

lprivately owned vehicle] accident during this period. 

2. The Board, consisting of Messrs. Pfeiffer, Rothlein and Zsalman, reviewed Petitioner’s
allegations of error and injustice on 10 October 
2O$l2. Pursuant to the Board ’s regulations,
the majority, Messrs. Rothlein and Zsalman, 
determind that the limited corrective action
indicated below should be taken on the available evidence of record. The minority, Mr.
Pfeiffer, recommended that Petitioner’s request be denied. 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’s allegations
of error and injustice, finds as follows:

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

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

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

c. On 20 January 2001, while Petitioner was assigned to Marine Corps Air Station

(MCAS) Iwakuni, Japan, another Marine, driving Petitioner
permission, had an accident involving injuries.

’s automobile with Petitioner

’s

d. On 4 April 

2001, Petitioner received the page 11 counseling entry mentioned in the
(l),

contested fitness report. While he provided a copy of this entry, at Tab B to enclosure 
he did not request its removal. The entry, showing a 
by a person other than the RS, stated in pertinent part the following:

“CO ” (commanding officer) signature

aIlowing another Marine to operate a motor vehicle while

.Counseled this date concerning the following deficiency: at 05 15 on

. . 
20 January 2001, did demonstrate a lack of dependability, self discipline [sic]
and judgement by 
intoxicated, which resulted in an accident with injuries. Specific recommendations
for corrective action are to use sound judgment, and uphold the highest standards
of conduct, integrity and leadership expected of all Marines. Assistance in
correcting these deficiencies is available through my chain of command to include
my SNCOIC [staff noncommissioned officer in charge], OIC, 
officer] and CO.
I am advised that failure to take corrective action may result in
administrative separation or limitation of further service. I am advised that within
five working days after acknowledgment of this entry a written rebuttal may be
submitted and that such a rebuttal will be filed on the document side of the service
record. I choose (to) make such a statement.

X0 [executive

Petitioner ’s undated rebuttal statement, at Tab Cto enclosure 

(1)) included the following:

. .I do not  [emphasis in 
. 
statement for the following reasons:

originaIl agree

with this entry and I choose to make a

’s automobile

1. The Gunnery [sic] Sergeant [sic] [who was driving Petitioner
when the accident occurred] was assigned as the Designated [sic] Driver [sic]
prior to us going to the club.
2. We were separated most of the evening but when I did see him, did not
appear to be drinking.
3. Before leaving the club, I checked with the Gunnery [sic] Sergeant [sic], to see
if he was too tired to drive back. He replied he was fine. During that time I did
not smell or see any indication of alcoholic usage. I did not think about him
being intoxicated because as stated prior; he was the Designated [sic] Driver [sic].
4.
If I had known that he was physically impaired in any way, I would never have
allowed him to operate the vehicle...

e.

The page 11 entry was issued after 8 March 2001, the date of the report of

investigation of the accident, but before 6 July 2001, the date of the second endorsement (Tab
D to enclosure (1)) on this report. The following statement, in paragraph 5 of this
endorsement, calls into question the assertion, in the page 11 entry, that Petitioner

’s having

2

allowed an allegedly intoxicated Marine to drive his automobile  “resulted in” the accident:
“...there is no ‘clear and convincing evidence ’ to establish that [the driver ’s] intoxication
”
alone was the proximate cause of the accident. 

f. The contested fitness report for 1 October 2000 to 31 July 2001 (Tab A to enclosure

.2 (“proficiency ”), E. 2 ( “effectiveness under stress ”), E. 3

(l)), submitted on 31 July 2001, documented Petitioner ’s service in his current grade of
gunnery sergeant, pay grade E-7, aboard MCAS Iwakuni. The report was submitted on the
occasion of his transfer; it was his last of three reports at that station from the same RS. He
received seven marks of  “E,” the third highest possible on a range of seven marks, in
sections D .  1 (“performance ”), D 
(“initiative”), F. 1 (“leading subordinates ”), F.2 (“developing subordinates ”). and F.5
(“communication skills ”); two of “D,”the fourth highest, in E. 1 ( “courage“) and G. 1
(“professional military education) “; and four of  “C, 
example”), F.4 (“ensuring well-being of subordinates ”), G.2 (“decision making ability ”) and
G.3 (“judgment”). The RS comments were positive in all respects, except for the comment
quoted in paragraph 1 above, whose removal has been directed by the HQMC PERB. In
“comparative assessment, 
(RO) marked Petitioner in the fourth highest
block of eight possible, along with four other gunnery sergeants; no others were ranked above
him, and three were below him. The RO comments were positive in all respects. Petitioner
was not given the opportunity to submit a rebuttal statement to this fitness report.

fifth highest, in F.3 ( “setting the

” the reviewing officer 

” the 

g. Petitioner provided a supporting letter dated 30 April 2002 (Tab E to enclosure (1))

from the RS who submitted the contested transfer fitness report, as well as both of
Petitioner’s two preceding reports at MCAS Iwakuni. The RS letter included the following:

. . .

[Petitioner ’s] marking [sic] were always very high and fully qualifying for
Promotion [sic] until his last reporting period here aboard MCAS Iwakuni,
during which time he received a Page [sic] 11 concerning an automobile
accident. I had no input on the particular Page [sic] 11 entry. Several
markings were significantly lower based on this page 11. I understood
that the Page [sic] 11 resulted from a full investigation concerning the
accident involving [Petitioner] and his POV. The Page [sic] 11 Entry [sic]
served to hang a Dark [sic] Cloud [sic] over my number 1 Gunnery [sic]
Sergeant [sic]. His performance during the period of this TR [transfer]
Report [sic] never wavered, his pack was fully loaded and he was a Marine
with a mission aboard MCAS Iwakuni right up until he got on the plane
for transfer out to the Food Team.

h.

In his application at enclosure 

(l), Petitioner contended that the RS comment PERB

has since directed removing is incorrect. He noted that the page 11 entry is the only other
matter in his record about the accident, and that the RS letter affirms he 
[sic] 11. 
” He also stressed the statements, in the RS letter, that the RS  “had no input on the
particular Page [sic] 11 entry ” and that “Several markings were significantly lower based on
this page 11. ”

“received a Page

3

i.

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

’s case.

It shows that

on 5 September 2002, they directed removal of the RS comment quoted in paragraph 1
above. The PERB report further offers the following explanation for their decision to deny
further relief:

3. In its proceedings, the PERB concluded that, with one minor exception,
the [contested fitness] report is both administratively correct and procedurally
complete as written and filed.. 
.

. . .

b. Not withstanding [sic] the voluminous documentation furnished..., to
[RS] ‘s letter, the [PERB] is not persuaded or convinced that
include the 
the lower markings in Sections E, F, and G of the fitness report at issue
were based solely on the 6105 entry and/or POV accident. In this regard,
the 
prior performance evaluation [for 1 October 1999 to 30 September 
by the same 
“E” to  “D,” F.3 from 
“C,” F.4 from  
“C” and G.3 from  
two were elevated 
Initiative) 

IpERB] emphasizes that although five marks were lower than on the
2ooO]
“D” to
“E” to 

IRS] [E. 1 mark dropped from 
“D” to 

(F2 [sic], Effectiveness Under Stress and F3 [sic],

[E.2 and E.3 raised from 

“C,” G.2 from 

“D” to 

“D” to 

“E”].

“C”],

j.

The memorandum for the record at enclosure (3) documents that a member of the
Board ’s staff contacted the HQMC PERB to determine their basis for the partial relief they
had approved, removing only the RS comment about the POV accident. The memorandum
reflects he was informed the PERB had found this comment adverse, such that the report in
which it appeared should have been referred to Petitioner for an opportunity to respond.

k.

In his application at enclosure 

(l), Petitioner asserts, without corroborating evidence,
that his command communicated with the CY 2001 Master Sergeant Selection Board, which
convened on 23 January 2001, about the incident 
received both the page 11 counseling entry of 4 April 2001 and the RS comment the PERB
directed removing from the contested fitness report submitted on 31 July 2001. This fitness
report, without the correction directed by the PERB on 5 September 2002, was in his record
for the CY 2002 Master Sergeant Selection Board, which convened on 28 January 

.of 20 January 2001 for which he later

2002.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the majority of the Board finds
an injustice warranting limited relief, specifically, complete removal of the contested fitness
report.

In concluding that the entire fitness report at issue should be removed, the majority notes that
the PERB directed removing the only adverse material in the report, because Petitioner had
not been given an opportunity to rebut it. The majority finds that the PERB did not go far
enough, as the RS admitted that on the basis of the page 11 entry cited in the comment the

” They find removal,
 
PERB directed removing, “Several markings were significantly lower.
rather than further revision, of the contested report is appropriate, as the RS did not specify
which marks had been affected, nor did he clarify what marks Petitioner would have received
without the page 11 entry. They do not feel Petitioner ’s having had a chance to rebut the
page 11 entry cured the failure to afford him the proper. processing of the adverse fitness
report, processing which would have included review of his rebuttal by both the RO and a
third sighting officer superior to the RO.

Since the uncorrected fitness report in question was in Petitioner ’s record before the CY 2002
Master Sergeant Selection Board, the majority finds he should have relief concerning his
failure of selection by that promotion board. He may submit to the HQMC Promotion
Branch (MMPR-2) his request for remedial consideration for promotion from this promotion
board, to be based on either complete removal of the contested fitness report, if the
majority’s recommendation is approved, or the PERB action to remove the adverse comment.

The majority finds no relief is warranted concerning Petitioner ’s failure of selection by the
CY 2001 Master Sergeant Selection Board. They note that this promotion board could not
have considered either the page 11 entry or the contested fitness report. Further, they are
unable to accept Petitioner ’s unsupported allegation that his command communicated
information to the promotion board regarding the incident of 20 January 2001.

In view of the foregoing, the majority recommends the following limited corrective action.

MAJORITY RECOMMENDATION:

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

and related material:

Date of Report

Reporting Senior

31 Jul 01

Period of Report
From T o

1 

Ott 

00 31 Jul 01

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 HQMC be corrected accordingly.

d. That any material or entries inconsistent with or relating to the majority ’s

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

5

e. That  ‘any material directed to be removed from Petitioner

’s naval record be returned

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.

f. That the remainder of Petitioner

’s request be denied.

MINORITY CONCLUSION:

The minority of the Board agrees with the majority report as it concerns Petitioner
of selection for promotion and his request for remedial promotion consideration. Contrary to
the majority, the minority finds the contested fitness report, as amended, should stand. While
the minority agrees with the majority that the comment the PERB directed removing did
adversely influence how the RS marked Petitioner, the minority finds that Petitioner
had a chance to rebut the page 11 entry provided him adequate due process.
above, the minority ’s recommendation is as follows:

In view of the

’s failures

’s having

MINORITY RECOMMENDATION:

a. That Petitioner ’s application 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

&Qq/&$q& 
JONATHAN S. 
Acting Recorder

+./. 
RUSKIN

$f&&l&+

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

1

MAJORITY REPORT

Reviewed and approved:

Jo&e
MINORITY  REPORT

Reviewed and approved:

6

DEPARTMENT OF THE NAV
HEADQUARTERS UNITED STATES MARINE CORPS
3280 

QUANTICO,

RUSSELL ROA

 VIRGINIA 22

Y

D

 

134-5 10

3

REFER TO:

IN REPLY
 
1610
MMER/PERB
si;p 
2002

9 0 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORD

S

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD
ADVISORY OPINION
GUNNERY SERGEANT

(PERB)
OF
USMC

(a)
(b) 

MC0 

P1610.7E  

DD Form 149 of 31 May 02

w/Ch  1-2

Per 

MC0 

1610.11C,

the Performance Evaluation Review Board,

1.
with three members present,
Gunnery Sergeant
Removal of the fitness report for the period 001001 to 010731
(TR) was requested.
directive governing submission of the report.

petition contained in reference (a).

met on 5 September 2002 to consider

(b) is the performance evaluation

Reference 

The petitioner contends it was inappropriate for the

2.
Reporting Senior to mention (Section I) his receipt of a 6105
Page 11 entry regarding a POV accident.
believes that markings on the report were lowered as a result of
said entry and accident.
furnishes his own statement,
a copy of the Line of Duty/
Misconduct Investigation, the page 11 entry, a copy of the
challenged fitness report,
Reporting Senior,
MARADMINs  

a letter of recommendation from the
copies of Master Brief Sheets, and copies of

To support his appeal, the petitioner

In addition, he

137/01  and  

156/02.

In its proceedings,

3.
exception,
procedurally complete as written and filed.
offered as relevant:

the report is both administratively correct and

the PERB concluded that, with one minor

The following is

a.

The Board agrees with the petitioner that no mention
should have been made concerning the Page 11 entry and/or POV
accident.
report in its entirety is not warranted and has, instead,
directed removal of the objectionable verbiage (i.e., "Received
6105 for POV accident during this period.").

the Board concludes that eliminating the

To this end,

b.

with reference (a),

Not withstanding the voluminous documentation furnished
to include the Reporting Senior's letter,

Subj:

MARINE  CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION ON
GUNNERY SERGE

BCNR APPLICATION IN THE CASE OF

USMC

and G of the fitness report at issue were

the Board is not persuaded or convinced that the lower markings
in Sections E, F,
based solely on the 6105 entry and/or POV accident.
regard,
than on the prior performance evaluation by the same Reporting
Senior,
F3,

In this
the Board emphasizes that although five marks were lower

Effectiveness Under Stress and

two were elevated (F2,

Initiative).

The Board's opinion,

4.
vote,
remain a part of Gunnery Sergeant
The limited corrective action  
record.
subparagraph 3a is considered sufficient.

is that the contested fitness report, as modified, should
official military

based on deliberation and secret ballot

ident

ified in

5.

The case is forwarded for final action.

Pertormance

Chairperson, 
Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

9 October 2002

MEMORANDUM FOR RECORD

SMC,

says PERB directed removal of comment

ecause it was adverse, and rept had not been re