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NAVY | BCNR | CY2004 | 05733-04
Original file (05733-04.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
         WASHINGTON DC 20370-5100




 BJG
                  Docket No: 5733-04
                                                                                 13 August 2004

Dear

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.
It is noted that the Commandant of the Marine Corps (CMC) has directed modification of the contested fitness report for 18 November 2002 to 1 September 2003 by marking item 6.a (commendatory material) and adding an amplifying statement that should have been included in section I.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 12 August 2004. 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 8 July 2004, 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 the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the report of the PERB in concluding that removal of the contested fitness report was not warranted. Accordingly, your application for relief beyond that effected by CMC 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 OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
 QUANTICO, VIRGINIA 22134-5103
                                                                                           IN REPLY REFER TO:
                                                                                                    1610
                                                                                                   MMER/ PERB
                                                                                                   JUL 08 2004


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY 0PINION ON BCNR APPLICATION IN THE CASE OF STAFF
         
         Ref: (a) SSgt XXXX s DD Form 149 of 1 Dec 03
 (b) MCO Pl610.7E w/Ch 1-8
1.       Per MCO 1610.11C. the Performance Evaluation Review Board, with three members present, met on 7 July 2004 to consider Staff Sergeant ‘s petition contained in reference (a) Removal of the fitness report for the period 20021118 to 20030901 (CH) was requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report fails to accurately record his performance and that it was written with extreme prejudice and bias by the Reporting Senior. To support his appeal, the petitioner furnishes a copy of the challenged fitness report, his own detailed statement, an e-mail transmission from his former company Commander, a copy of his Certificate of Completion of Amphibious War Fighting Phase I, and a copy of Certificate from the Internal Revenue Service/California Franchise Board.
3.       In its proceedings, the PERB concluded that, with one minor exception, the report is both administratively correct and procedurally complete as written and filed. The following is offered as relevant:
a.       The petitioner’s allegation that the report reflects bias and prejudice on the part of Captain is neither supported nor corroborated. Likewise, the statement quoted by the petitioner as having been made by Captain is also unsubstantiated.
b.       The Board finds no merit in the petitioner’s belief that the report violates reference (b) relative to the reporting chain, or that a waiver to modify the standard reporting chain








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

should have been requested from this Headquarters. The petitioner is only partially correct that the Reporting Senior was historically the S-4 Logistics Officer. In the report immediately preceding the one under consideration (i.e., 20020821 to 20021117), the Reporting Senior was the Motor Transport Officer (First Lieutenant . Succinctly stated, there is no reason to believe the subsequent Motor Transport Officer (Captai ‘ ‘ would not have retained Reporting Senior responsibility. In this regard, the Board discerns neither an error nor an injustice.

 c.       The certificate documenting completion of AWS Phase I was not signed until 24 November 2003, more than two months after the end of the reporting period. Hence, its mention was correctly not included in the challenged fitness report. We do note that the petitioner’s subsequent fitness report reflects a higher mark in Item Gl (PME), and evidently appropriately captures completion of AWS Phase I.
d.       Given the petitioner’s receipt of the Certificate from the Internal Revenue Service/California Franchise Board, the PERB concludes that Item 6a (commendatory) should have been marked and that an amplifying statement should have been included in Section 1. They do not, however, find that removal of the report is either warranted or necessary. Instead, the Board has directed appropriate corrective action to both the fitness report and the petitioner’s Master Brief Sheet.
4. The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness report, as modified, should remain a part of Staff Sergeant official military record. The limited corrective action identified in subparagraph 3d is considered sufficient.

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




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