DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100

                                                   BJG
                                                   Docket No: 497-03
                                                   25 February 2003







Dear Staff Sergeant

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.

A three-member panel of the Board for Correction of Naval Records, sitting
in executive session, considered your application on 21 February 2003. Your
allegations of error and injustice were reviewed in accordance with
administrative regulations and procedures applicable to the proceedings of
this Board. Documentary material considered by the 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
Performance Evaluation Review Board (PERB), dated 16 January 2003, a copy
of which is attached.

After careful and conscientious consideration of the entire record, the
Board found that the evidence submitted was insufficient to establish
probable material error or injustice. In this connection, the Board
substantially concurred with the comments contained in the report of the
PERB. The Board was not persuaded that the contested fitness report was
used as a counseling tool, nor could it find the reporting senior engaged
in “blatant conjecture” by stating, in section G, that you were absent
without authority on one occasion. The Board was unable to find that many
of the times you missed class were because you had to appear in court, nor
could it find that your course withdrawals were on the advice of the
reporting senior. The Board did not consider the contested fitness report
to be materially incomplete for failing to mention your commanding officer
authorized you to withdraw from one three-hour course. The Board likewise
did not consider it a material omission not to mention your completion of
the first phase of the Bulldog program at Officer Candidate School, if you
did, as you assert, complete it. 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

Enclosure



























































































                           DEPARTMENT OP THE NAVY
                   HEADQUARTERS UNITED STATES MARINE CORPS
                              3280 RUSSELL ROAD
                        QUANTICO, VIRGINIA 22134.5103
 IN REPLY REFER To:
1610
MMER/ PERB
JAN 162003

     MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL
                            RECORDS

     Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY
              OPINION ON BCNR APPLICATION IN THE CASE OF STAFF SERGEANT

                          USMC

                                (a)     DD Form 149 of 31 May 02
              (b) MCO P1610.7E

     1.     Per MCO 1610.11C, the Performance Evaluation Review Board, with
     three members present, met on 15 January 2003 to consider Staff
     Sergeant petition contained in reference (a) Removal of the fitness
     report for the period 19981001 to 19990726 (DC) was requested.
     Reference (b) is the performance evaluation directive governing
     submission of the report.

     2.     The petitioner contends the report was used as counseling tool;
     that it contains “blatant conjecture”; and that it does not reflect
     growth potential for advancement within the enlisted ranks. It is the
     petitioner’s position that he experienced extreme personal turmoil
     during this reporting period regarding his marriage and subsequent
     custody of his son and that the report reflects unfairly on his
     decisions in that regard. Additionally, the petitioner argues that the
     Reviewing Officer introduced new/additional adverse material without
     affording him an opportunity to respond and that the changes identified
     by the Third Sighting Officer in his Addendum Page were never presented
     for the petitioner to view. To support his appeal, the petitioner
     furnishes his own detailed statement, endorsements from his chain of
     command, and letters from Sergeant Major and First Sergeant

     3.     In its proceedings, the PERB concluded that the report is both
     administratively correct and procedurally complete as written and
     filed. The Following is offered as relevant:

         a. At the outset, the Board emphasizes that when the petitioner
     acknowledged the adverse nature of the report (evidence his signature
     in Item J2), he opted to omit a statement in his own behalf. In so
     doing, he passively









Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY
         OPINION ON BCNR APPLICATION IN THE CASE OF STAFF
      SERGEANT   ~ USMC

concurred in the accuracy of the report without providing any matters in
extenuation and mitigation. The issues that have been raised in reference
(a) should have been surfaced at the time, not almost four years later when
all parties involved are no longer available to resolve any perceived
factual differences and when the issues may have faded over time. We also
point out that reference (b) specifically states that the appeal system is
no substitute for proper resolution of an adverse fitness report at the
time it is prepared.

     b.     While the endorsements and advocacy letters accompanying
reference (a) are supportive and complimentary, the Board is haste to point
out that none of the personnel who authored those documents, other than
First Sergean had any direct or first-hand knowledge of the situation.
Their respective opinions concerning the situation and validity of the
challenged fitness report are speculation based on the information
furnished by the petitioner. As a result, their observations are simply not
germane.

     c.     A member of the Staff telephonically contacted First Sergeant 2
December 2002 and confirmed the following:

         (1)     That the petitioner was required to maintain fulltime
student status during the reporting period, and at no time was authorized
to withdraw below that status (12 hours). The First Sergeant specifically
recalled that the petitioner was authorized by the NROTC Commanding Officer
to withdraw from one three-hour course to provide him with some additional
flexibility to deal with personal problems. This allowed the petitioner to
keep the minimum course load necessary for fulltime status. At the time,
the petitioner had a course load of 15 hours, which was the minimum
requirement set by the NROTC unit for MECEP students. First Sergean iso
indicated that MECEP students maintained course ba average of between 18
and 22 hours each semester. Consequently, during this reporting period, the
petitioner carried a little over half the average course load of most other
MECEP students.

         (2)     That the petitioner had been counseled on numerous
occasions regarding his lack of maturity and the poor manner in which he
was handling his personal problems. First Sergeant



                                      2















Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY
         OPINION ON BCNR APPLICATION IN THE CASE OF STAFF SERGEANT~~~~

          so recalled specific occasions when he advised the e 1 loner that
he might face disenrollment from the MECEP program if he did not
demonstrate more maturity and keep his grades up to par.

         (3)     That the petitioner’s immaturity manifested itself on
numerous occasions. He was unaware that the petitioner wlthdrew from
additional classes (other than the one class to drop to 12 hours per
semester) until after receiving the petitioner’s semester grades.

         (4)     That the petitioner was placed on academic probation
following the fall semester of school year 98-99. First Sergeant~ recalled
that the petitioner appeared before the Performance Review Board (PRB) on
23 January 1999 for disenrollment. Instead, he was placed on academic
probation with the following stipulations: 25 hours of study hall per week;
attain 2.5 or better Spring 1999 semester GPA, with no course failures;
meet with counselor (Captain
two weeks to discuss course work and personal situation; submit a workable
budget to the counselor; attend all classes. He was also instructed to make
up the 12 credits from which he withdrew through Summer Sessions,
Summer/Winter Presessions, and extended University course work, without
further impact to his scheduled graduation date. There were additional
suggestions made regardlng assistance for financial, personal, marriage,
and child custody concerns. However, they were not terms of his probation.

     d.     Contrary to the petitioner’s beliefs, the Reviewing Officer did
not add new/additional adverse material. Per subparagraph S001.3e of
reference (b), a mark of
unsatisfactory” in Item K3 does not constitute new adverse mateial when the
Reporting Senior has already marked the Marine reported on adversely in one
or more attributes in Sections D through H. Additionally, subparagraph
5004.5 of reference (b) indicates that comments that merely reiterate the
Reporting Senlor’s comments in Section I do not constitute new adverse
material. In this situation, the Reviewing Officer simply restated the
Reporting Senior’s mark in item 7b and his recommendation for not promoting
the petitioner with his contemporaries due to lack of judgment and
maturity.



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Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
      ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF STAFF
         SERGEANT ~

     e.     As a final matter, the Board finds nothing to show that the
petitioner did not sight the actual completed report that was submitted to
this Headquarters.

4. The Board’s opinion, base on deliberation and secret ballot vote, is
that the contested fitness report should remain a part of Staff Sergeant
official military record.

5. The case is forwarded for final action.




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


























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