DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BUG
Docket No: 6373-06
28 September 2006

 

 

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 modifying the fitness reports for 1 June to

1 September 2000 and 2 September 2000 to 5 March 2001 by
removing section K (reviewing officer (RO) marks and comments) .
You also requested that the fitness report for 20 December 2002
to 31 May 2004 be modified by removing the mark in section K.3
(RO’s “Comparative Assessment”) or raising it, in accordance
with the RO’s letter dated 16 March 2006, from the sixth best of
eight possible marks to the fifth best. Finally, you requested
removing your failure of selection by the Fiscal Year (FY) 2007
Major Selection Board.

It is noted that the Commandant of the Marine Corps (CMC) has
directed modifying the contested section K of the fitness report
for 1 June to 1 September 2000 by removing, from section K.4
(“[RO] Comments”) “Developing slightly behind peers.”

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your

application on 28 September 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 (HQMC) Performance
Evaluation Review Board (PERB), dated 11 July 2006, and the
advisory opinion from the HQMC Officer Counseling Section,
Personnel Management Division (MMOA-4), dated 31 July 2006,
copies of which are attached. The Board also considered your
rebuttal letter dated 15 September 2006 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 substantially
concurred with the comments contained in the report of the PERB.
Specifically concerning the contested section K of the fitness
report for 2 September 2000 to 5 March 2001, the Board found the
mark in section K.3, the second lowest of eight possible marks,
did not require marking section K.2 (“Evaluation”) “Do Not
Concur [with reporting senior].” The Board substantially
concurred with the advisory opinion from MMOA-4 in concluding
your selection by the FY 2007 Major Selection Board would have
been definitely unlikely, even if the correction directed by CMC
had been effected. 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 modify section K.3 of the report
for 20 December 2003 to 31 May 2004, you may submit the RO
letter of 16 March 2006 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,

Executive Di

\

 

 

Enclosures
DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD

QUANTICO, VIRGINIA 22134-5103
IN REPLY REFER TO:

1610
MMER / PERB

SUL 11 2008

EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 

 

 

 

 

MEMORANDUM FOR THI

 

 

CJ
Cf]

 

 

 

 

 

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

oe eo cey

 

 

 

 

 

 

 

 

 
 
  

Maas 2D Form 149 of 17 Mar 06
(b) MCO P1610.7E w/Ch 1-9

 

1. Per MCO 1610.11C, the Performance Evaluation Review Board,
with three members present, met on 5 July 2006 to consider
ES = petition contained in reference (a).
Modification of his fitness reports covering the periods 20000601
to 20000901 (GC), 20000902 to 20010305 (CH), and 20031220 to
20040531 (AN) was requested. Reference (b) is the performance
evaluation directive governing submission of the report.

 

2. The petitioner contends the report covering the period
20000601 to 20000901 (GC) is unfair because the reviewing
officer’s comments can be construed as adverse. He also contends
the report covering the period 20000902 to 20010305 (CH) is
inaccurate because the reviewing officer did not have sufficient
time to observe his performance during the reporting period.
Finally, he contends the reviewing officer’s comparative
assessment marking on the report covering the period 20031220 to
20040531 (AN) is incorrect. The petitioner contends it was not
the reviewing officer's intent to mark him as the worst captain
he had observed. To support his request, he submits an advocacy
letter from the reviewing officer.

3. In its proceedings, the Board concluded that the reports
covering the periods 20000902 to 20010305 (CH) and 20031220 to
20040531 (AN) are administratively correct and procedurally
complete as written and filed. The report covering the period
20000601 to 20000901 (GC) is administratively incorrect. The
following is offered as relevant:

a. Regarding the report covering the period 20000601 to
20000901 (GC), the Board found the first sentence of the
reviewing officer’s comments, “Developing slightly
tg
ta

 

 

 

Cj

 

Subj: MARINE CORPS PERFORMANC] ERB)

 

 

EVALUATION REVIEW BOARD
CASE

 

 

 

Cc

ADVISORY OEENIGN | ON BCNE APPLICATION IN THI

ss grates

 

behind peers,” reflects failure and renders the report adverse.
Per paragraph 4012.5m of reference (b), “Comments identifying
minor limitations, shortcomings . . . in an otherwise overall
positive performance ... serve no constructive purpose

are most often counseling comments and not germane to the overall
evaluation.” The Board found the reporting senior’s evaluation
to be positive, and in section K-2 the reviewing officer places
the petitioner in the *one of many highly qualified’ categories.
Therefore, the Board found the first sentence. of the reviewing
officer’s comments to be adverse and counseling in nature and
directed that it be expunged from the report.

b. When reviewing the report covering the period 20000902 to
20010305 (CH), the Board did not agree with the petitioner’s
contention that the reviewing officer did not have sufficient
time to observe his performance. Per paragraph 4014.2 of
reference (b), “There are no hard guidelines on what constitutes
sufficient knowledge and observation.” The Board found that the
reviewing officer clearly indicated in section K-1i he had
“sufficient” observation to evaluate the petitioner and in K-2,
he concurred with the reporting senior’s evaluation. The Board
also did not agree with the petitioner’s contention that the
reviewing officer marking was adverse. The marking of a
“qualified Marine” on the section K-3, comparative assessment, is
not an adverse mark. After reviewing all of the documentation,
the Board concluded that the petitioner failed to substantiate
that the reviewing officer’s assessment is not an honest or
accurate assessment.

c. In regard to the report covering the period 20031220 to
20040531 (AN), the Board found that it would be inappropriate to
change the reviewing officer’s assessment. Per 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 was prepared.”
After reading the reviewing officer’s advocacy letter, the Board
found that he failed to provide insight into anything unknown or
overlooked that would warrant correction to the petitioner’s K-3,
comparative assessment mark.
Subj: MARINE CORPS PERFORMANCE EVALUATION RHVIEW BOARD
dtc OE TNION a cme _APPLICAT ION IN THE CASE

 

 

 

4. The Board’s opinion, based on deliberation and secret ballot
vote, is that the contested fitness reports, covering the periods
20000902 to 20010305 (CH) and 20031220 to 20040531 (AN), should
remain a part Sieg piaetieeMes s official military
record as currently filed. The Board also directed that the
report covering the period 20000601 to 20000901 (GC) be modified
as directed in paragraph 3(a) of this letter.

 

a The case is forwarded for final action.

aK

F. SWAIN
colonel. U.S. Marine Corps
Deputy Director
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD

QUANTICO, VA 22134-5103

IN REPLY REFER TO:

1600
MMOA~ 4
31 Jul 06

 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

Subj: BCNR PETITION FOR @@

 

Ref: (a) MMEK Request for Advisory Opinion in the case of

 
   

a. Recommend disapproval of. ¢@é
his failure of selection.

  
 

D Fer the reference, we reviewed aaa mes record and petition.
ihe. | ed selection on the FYO Major Selection Board. He
subsequently petitioned the Performance Evaluation Review Board (PERB) to
modify fitness reports 20000601 to 20000901 (GC), 20000902 to 20010305
(CH), and 20031220 to 20040531 (AN). The PERB granted relief of only
report 20000601 to 20000901 (GC), in that the sentence “Developing slightly
behind peers”, section K.4, be removed. 4 Methen requested removal
of his failure of selection.

 

 

3. In our opinion, although the relief granted b
slightly improve the competitiveness of fit ne _—s S record, it
does not warrant removal of his failure of selection. We believe that
S pe Memost likely failed selection in FY07 because his record
was not as competitive as his peers. His record indicates marginal MOS
credibility as a captain, having been in the Fleet Marine Force (FMF)
for only eight months before beginning post-graduate education. Also,
eee ati Ws record indicates below average Reviewing Officer (RO)
assessment for seven out of twelve fitness reports where the RO had
sufficient observation of his performance. Four out of those seven
marks remain at the bottom of the RO’s profile. Another detractor to
es Ms record is that he currently possesses no combat
Based upon the above assessment we recommend disapproval

AU hoawom

M. MORRISROE
Lieutenant Colonel, USMC
Head, Officer Counseling Section
Personnel Management: Division

  
 
  

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