DEPARTMENT OF THE  NAVY 

BOARD  F O R C O R R E C T I O N  OF  NAVAL  RECORDS 

2  NAVY  ANNEX 

WASHINGTON  D C   2 0 3 7 0 - 5 1 0 0  

BJG 
Docket No:  5572-03 
20 August 2003 

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  14 August 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 26 June 2003, a copy of  which is attached.  The Board  also considered 
your  undated rebuttal letter with  enclosures. 

After careful and conscientious consideration of  the entire record, the Board  found that the 
evidence submitted was  insufficient to establish the existence of  probable material error or 
injustice.  In this connection, the Board  substantidy concurred with the comments contained 
in  the report of  the PERB. 

The Board was  unable to find the contested  fitness report was given as a form of  punishment. 
The Board  noted the reporting senior (RS) did  not state he was away throughout the reporting 
period, only that he was away too much  to permit submission of an  observed report on  you. 
The Board was unable to find the RS  had  enough observation to submit a fully observed 
report.  The Board  did not find the limited comments provided were inconsistent with a "not 
observed" report.  The Board  further noted  you  acknowledged, in paragraph  1 of  your 
undated rebuttal letter, that you  were not officially reassigned during the period.  The Board 
was  unable to find you  were not  counseled, noting that both  the RS  and reviewing officer 
stated that you  were.  In  this regard, the Board generally does not grant relief on  the basis of 
an  alleged absence of counseling, since counseling takes many  forms, so the recipient may 
not  recognize it as such when  it is provided.  The Board noted that enclosure (1) to Marine 

Corps Order  1000.9, paragraph 3.c  includes, in the definition of  "sexual harassment, " 
conduct of  a sexual nature that  " . . .has the purpose or effect of  unreasonably interfering with 
an individual's work performance or creates an intimidating, hostile, or offensive working 
environment."  The three criteria you  cited appear in paragraph  lO.a(4) of  the order; they are 
the three circumstances of  sexual harassment under which  separation processing is mandatory. 
The Board  was unable to find it unlawful that the contested fitness report was submitted after 
the preliminary investigation, nor could the Board  find any basis to question the validity of 
the preliminary investigation's findings.  The Board did not accept your contention that the 
investigation was no longer a preliminary investigation when  the investigating officer (10) 
read you  your rights.  Finally, the Board noted  the I 0  did not  say you  were unwilling to give 
a statement, but  said that except for you,  all individuals interviewed were "without 
reservation."  You  acknowledge you  told the 10, after the I 0  read you  your  rights, that you 
wanted to consult a lawyer.  The Board did not  find it objectionable if  the I 0  did  not contact 
you  after that. 

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 

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  34-5 1 0 3  

I N  REPLY REFER TO: 

1610 
MMER/PERB 
JUN  2 6 2003 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Sub j : 

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

8USMC 

Ref: 

(a) GySg 
(b) MCO -1-2 

Form 149 of 24 Mar 03 

1.  Per MCO 1610.11Cl the Performance Evaluation Review Board, 
with three members present, met on 25 June 2003 to consider 
Gunnery sergeant-petition 
Removal of the fitness report for the period 20010809 to 
20011001  (TR) was requested.  Reference (b) is the performance 
evaluation directive governing submission of the report. 
NOTE:  The report has been administratively corrected to reflect 
the inclusive dates:  20010630 to 20011001. 

contained in reference (a). 

2.  The petitioner contends the report at issued was used as a 
form of punishment for a situation he believes was totally 
unfounded.  He also indicates there was a period of four months 
during which he was reassigned awaiting the outcome of the 
investigation, yet the report only covers a three-month period. 
To support his appeal, the petitioner furnishes his own state- 
ment, a copy of the challenged fitness report, and a copy of the 
redacted Command Investigation. 

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.  There are no "to TAD"  (TD) or "from TAD"  (FD) reports 

that prove the petitioner's  claim he was reassigned.  However, 
in Section I the Reporting Senior identifies periods of non- 
availability for himself for convalescent leave, annual leave, 
and hospitalization, and documents the petitioner's  reassignment 
from 15 September 2001 until the end of the reporting period. 

b . 

S ~ : l - ] - ~ j ? - q  ~r2.iyl1::  4003 .6b ( 7 )  13:  2nd  IFI:  af ref r - r ~ n r ~  
(h'l 

furnish guidance concerning the administrative disposition of 

Subj :  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF 

misconduct and the proper recording of that action in Section I 
of the fitness report.  In this particular case, the petitioner 
received a Page 11 entry resulting from a Command Investigation 
conducted during the reporting period.  The Commanding Officer 
non-concurred in recommendation 6(a) of the Investigation 
Officer's report; however, since that portion  (along with the 
majority of the investigation) has been redacted, it cannot be 
determined precisely what was contained in that recommendat ion. 
The Board opines the recommendation may have included some type 
of disciplinary action.  This conclusion is based on the 
verbiage in subparagraph la of the Commanding Officer's 
endorsement of 12 Oct 01 and his decision that formal counseling 
and removal from the command was appropriate.  This is further 
solidified by the Commanding ~fficer/~eviewing Officer's  final 
statement on his Addendum Page of 16 November 2001  (i.e., 'After 
careful consideration by the command of the MRO1s record of 
service and Marines involved, it was decided that this matter 
would be best dealt with administratively."). 

c.  In all respects, the fitness report appears legitimate 
and factual.  Understanding that any type of harassment should 
not be taken lightly, and if this harassment was identified 
through the Request Mast process, the command was obligated to 
take whatever action they considered appropriate to resolve the 
situation. 

4.  The Board's opinion, based on deliberation and secret ballot 
"uie!,  is that the cori~ested fitness repcrxL should remain a part 
of Gunnery ~ergea,-official 

military record. 

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