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NAVY | BCNR | CY2006 | 02174-06
Original file (02174-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 BJG
 Docket No: 2174-06
 8 March 2007




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 8 March 2007. 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 30 January 2007, a copy of which is attached. The Board also considered your rebuttal letter dated 6 February 2007.
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. Accordingly, 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,


Executive Di rector

Enclosure



DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 221 34-51 03
IN1R~o REFER TO:


 MMER/ PERB
 JAN 10 2007
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
(a) DD Form 149 of 6 Mar 06
(b) MCO P1610.7E w/Ch 1-8
1.       Per MCO 1610.11C, the Performance Evaluation Review Board, with three members present, met on 24 January 2007 to consider petition contained in reference (a). Removal of the fitness report covering the period 20030527 to 20031112 (DC) was requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report is invalid because of the “erroneous perception” the reporting senior and reviewing officer had of him because of the Level IV spousal abuse finding. He also contends that he was not afforded a CRC Status Determination Review.
3.       In its proceedings, the Board concluded that the report covering the period 20030527 to 20031112 (DC) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:
a.       Per paragraph 3004.2c(9) of reference (b), a DC report is required upon, “Substantiated findings of level three, four, or five domestic violence cases ... and after affording the MRO due process a determination by the commanding officer that the MRO is culpable.” In this case, the Board found that the report clearly and properly documents a case of spousal abuse with a substantiated Level IV CRC determination. In the petitioner’s rebuttal, he does acknowledge that an incident with his wife did occur but contends from his perspective he did nothing wrong. The Board also found that the reporting senior states in section “I”, the commanding officer determined the petitioner’s culpability and the third officer sighter confirmed the validity of the reported adversity.







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

b.       The Board found that the petitioner’s implication that he was not afforded a review of the CRC findings is not substantiated. In his rebuttal, he clearly stated, “I am currently going through the appeals process with my chain of command.” The Board also found that all documentation provided by the petitioner indicates he was afforded due process. However, he declines to explain himself on the advice of his attorney. Finally, the Board found that the petitioner does not provide any advocacy statements from any attorney or legal advisor that would substantiate that he was unjustly determined culpable in this case or that he was denied a proper review.
4.       The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness report, covering the period 20030527 to 20031112 (DC), should remain a part of         official military record.
5. The case is forwarded for final action.

2

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