DEPARTMENTOF THE  NAVY 

BOARD  F O R C O R R E C T I O N   O F   NAVAL  R E C O R D S  

2  N A V Y A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

BJG 
Docket No:  4790-03 
20 October 2003 

Dear Staff Serg- 

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 removal of the fitness report for 6 September to  12 October 2000; remedial 
consideration for promotion to gunnery sergeant; and by  implication, removal of  your  status 
as having  failed of  selection for promotion to gunnery sergeant. 

A three-member panel of  the Board for Correction of  Naval Records,  sitting in  executive 
session, considered your application on  17 October 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  (PEW), dated 2 June 2003,  a copy of  which is attached.  The Board also considered 
your counsel's rebuttal letter dated  16 September 2003 with  enclosures. 

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 PEW report in concluding that the 
contested fitness report should stand.  The Board  noted  that Marine Corps Order P1610.7E, 
paragraph 4003. b. (6), concerning section A,  item  8b (physical fitness test (PFT)) of  the 
fitness report form, says "Use code 'NMED'  [not medically qualified] if the MRO warine 
reported on]  is unable to take or pass the PFT because of a physical (medical) condition."  It 
does not indicate the PFT must be semi-annual for  "NMED" to be a proper entry.  Finally, 
the Board was unable to find you  should have been recycled to drill instructor school, 
whether or not spaces were available, so it could not  find your not having been  recycled 
unjustly harmed  your chances for promotion.  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, 

Enclosure 

Copy to: 
Charles W.  Gittins, Esq. 

DEPARTMENT OF THE NAVY 

H E A D Q U A R T E R S   U N I T E D  S T A T E S   M A R I N E  C O R P S  

3280 R U S S E L L   R O A D  

Q U A N T I C O ,   V I R G I N I A   2 2 1  3 4 - 5  1 0 3  

I N  R E P L Y  REFER TO: 
1610 
MMER/ PERB 
JUN  0 2 2003 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

I 

Subj : 

Ref: 

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

, USMC 

(a) ssgt- 
(b) MCO P1610.7E w/Ch 1-2 

c -  Y 

Form 149 of 15 Feb 03 

1.  Per MCO 1610.11C1 the Performance Evaluation Review Board, 
with three members present, met on 29 May 2003 to consider Staff 
Sergeant 
petition contained in reference  (a).  Removal 
of the fitness report for the period 20000906 to 20001012 (FD) 
was requested.  Reference  (b) is the performance evaluation 
directive governing submission of the report. 

2.  The petitioner, via legal counsel, argues that the nature of 
the report  (i.e., disenrollment from Drill Instructor School), 
coupled with the "unfair adverse" entry of  "NMED" in Item 8b, 
mandated referral of the report for acknowledgement and the 
opportunity to respond.  Counsel points out that the petitioner 
was dropped from the course for failure to meet required 
standards, and that such an occurrence required the fitness 
report to be referred to the petitioner. 

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.  Contrary to the arguments presented in reference (a), 

the petitioner's disenrollment from Drill Instructor School was 
not adverse.  Likewise, the fitness report at issue is not 
adverse and nothing in the overall evaluation implies the 
petitioner was not up to the Marine Corps1 physical standards. 
Competent medical authorities determined the petitioner was 
suffering the early stages of pneumonia, an illness obviously 
beyond his control.  Simply stated, being sick does not 
constitute adversity for the purpose of a fitness report. 

b.  The "NMED" entry in Item 8b of the fitness report, whi.ch 

is further explained in Section I, correctly indicates the 

Subj : 

I 

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

USMC 

petitioner did not take the physical fitness test  (PFT) because 
of his medical condition.  It does not mean or infer he 'failed 
to complete the school PFT."  Likewise, it is not a negative 
reflection on the petitioner's conditioning and physical 
fitness.  That issue not withstanding, PFT testing is normal 
SOP at formal schools, especially Drill Instructor School. 
Recording the results of that testing on fitness reports is 
totally within the spirit and intent of reference (b) . 

c.  Subparagraph 6004.4b(2) of reference  (b) states as 

follows:  'If  the MRO is dropped or disenrolled from a formal 
course or school in less than 90 days, the RS must complete an 
FD report and fully explain the reasons in section I.  NOTE: 
Drops or disenrollments for cause are adverse and require the 
appropriate processing per Chapter 5."  Section I of the 
challenged fitness report states the petitioner was 
administratively disenrolled, not relieved for cause.  Clearly, 
t,he circumstances were not the result of any neglect or adverse 
action on his part. 

d.  That the petitioner was not immediately recycled is not 

an automatic provision.  Obviously, either his illness would not 
have allowed recycling or there simply were no vacant seats for 
the next class. 

4.  The Board's opinion, based on deliberation and secret ballot 
vote, is that the contested fitness report should remain a part 
of Staff s ~ ~ ~ j d a l ~ ~  

milithly recol-d. 

-~iiicial 

5.  The case is forwarded for final action. 

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