DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-51 00

                                                 BJG
                                                 Docket No: 933-06
                                                 27 February 2006














Dear Captain

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 removing the fitness report for 16 March 2004 to 17 June 2005
and filing in its place a report for 2 June 2004 to 17 June 2005.

It is noted that the Commandant of the Marine Corps (CMC) has directed
removing the uncontested “not observed” fitness report for 16 March to 1
June 2004.

A three-member panel of the Board for Correction of Naval Records, sitting
in executive session, considered your application on 24 February 2006. 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 23 January 2006 with
attachment, 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. The Board was unable to find the contested fitness report was
submitted as a result of an administrative error by an administrative
clerk. In view of the above, 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.




Although the Board voted not to file the report for 2 June 2004 to 17 June
2005 in your record, you may submit it to future selection boards.

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
                   HEADQUARTERS UNITED STATES MARINE CORPS
                              3280 RUSSELL ROAD
                       QUANTICO, VIRGINIA 22134~5 103


                                                                IN REPLY
                                                                REFER TO:
                                                                 1610
                                                                 MMER/ PERB
      JAN 23 2006


MEMOPANDUM 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
Ref:  (a) Captain      - DD Form 149 of 12 August 2005
         (b)     MCO P1610.7E w/Ch 1-9

1.    Per MCO 1610.11C, the Performance Evaluation Review Board, with three
members present, met on 11 January 2006 to consider  Captain  petition
contained in reference (a) Modification of his fitness report covering the
period 20040316 to 20050617 (CH) was requested. Reference (b) is the
performance evaluation directive governing submission of the report.

2.    The petitioner contends that the report is inaccurate because it has
the wrong beginning date and the reviewing officer assessment marking is
inaccurate.

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

     a.     The Board found that the dates on the report are correct because
they rightfully follow the prior TD report submitted by Lieutenant Colonel
the petitioner. The Board also found
that Lieutenant Colonel        should have made the report a CH report vice
a TD report since the petitioner remained as L Battery commander.

     b.     The petitioner also requested that the reviewing officer mark be
changed on the report. Per the provisions of paragraph 8007.2 of reference
(b), the CMC “can approve a revised assessment of a Marine’s conduct or
performance based entirely on facts about the Marine that were unknown when
the original report








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

was prepared.” In this case, the reviewing officer offers no specific facts
to justify upgrading his markings; facts that are based on the petitioner’s
exhibited efforts and results, and that were overlooked when he prepared
the original report.

     c.     The Board also found a “not observed” report in the petitioner’s
record covering the period 20040316 to 20040601 (AN); it overlaps the
report covering the period 20040316 to 20050617 (CH). Since annual reports
for Captains do not end on 30 June, the Board determined that the report
was invalid and directed that the report be removed from the petitioner’s
official record.

4.    The Board’s opinion, based on deliberation and secret ballot vote, is
that the contested fitness report, covering the period 20040316 to 20050617
(CH), should remain a part of Captain s official military record.

5.    The case is forwarded for final action.




                                    Colonel, U.S. Marine Corps
                                    Deputy Director
                                    Personnel Management Division
                                    Manpower and Reserve Affairs
                                    Department
                                    By direction of the Commandant
                                    of the Marine Corps

















                                      2






                                                            1610
                                                            NMER/ PERB
                                                            JAN 1 9 2006

MEMORANDUM


From: Head, Performance Evaluation Review Branch
To:   Head, Personnel Management Support Branch

Subj: CORRECTION TO NAVAL RECORD IN THE CASE OF CAPTAIN


Ref:  (a) MCO l6lO.llC

1.    Per the reference, the Performance Evaluation Review Board has
reviewed allegations of error and injustice in subject’s naval record and
the following action is requested:

     a.     That subject’s naval record be corrected by removing the
following fitness report:
Date of Report   Reporting Senior Period of Report
29 June 2005     LtCol -     20040316 to 20040601 (AN)

     b.     That no “filler memorandum” be inserted in place of the removed
report.

2. Additionally, please ensure that any other files that may contain the
subject matter identified in paragraph Ia above are purged of the
documentation. Such documentation (paper form, tape, and security file
microfiche) is to be returned to the PERB for retention.

3. For Head, NMSB-31: Please correct the PES by removing any record of the
fitness report identified in the paragraph above.





Copy to:
MMSB- 31