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NAVY | BCNR | CY2006 | 07196-06
Original file (07196-06.rtf) Auto-classification: Approved
BJG
 Docket No:7196-06
 2 March 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
                   REVIEW OF NAVAL RECORD
         Ref:     (a) Title 10 U.S.C. 1552

 End:     (1) DD Form 149 dtd 20 Apr 06 w/encl
 (2)      HQMC M MER/PERB memo dtd 8 Aug 06
(3)      HQMC MM OA-4 memo dtd 15 Sep 06
 (4)      Memo for record dtd 27 Feb 07
(5)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected by removing section K (reviewing officer (RO) marks and comments) from the fitness reports for 9 May 1998 to 1 June 1999 and 1 August 1999 to 29 February 2000 (copies in enclosure (1) at Tabs A and B), completely removing the report for 13 March to 31 July 2001 (copy in enclosure (1) at Tab C), and removing the word “quiet” from the RO comments in the report for 20 July 2002 to 31 May 2003 (copy in enclosure (1) at Tab D) . As reflected in enclosure (2), the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) has directed removing the contested section K’s and the word quiet,” and HQMC has modified the report for 1 August 1999 to 29 February 2000 to show “CAPT” (captain) vice “MAJ” (major) in section A, item i.e (grade). Petitioner further requested a remedial promotion board or removal of his failures of selection by the Fiscal Year (FY) 2006 and 2007 Lieutenant Colonel Selection Boards. After he had applied to this Board, he also failed of selection by the FY 2008 Lieutenant Colonel Selection Board. It is presumed he desires removing that failure as well, so as to be considered by the selection board that next convenes to consider officers of his category for promotion to the grade of lieutenant colonel as an officer who has not failed of selection for promotion to that grade.
2.       The Board, consisting of Ms. Ballinger and Messrs. Bowen and Chapman, reviewed Petitioner’s allegations of error and injustice on 1 March 2007, and pursuant to its regulations, determined that the limited corrective action indicated below should be taken of the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.

3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

 a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.

b.       Concerning the contested fitness report for 13 March to 31 July 2001, Petitioner contends it was submitted late (reporting senior (RS) and RO signed it on 28 September 2001 and 2 January 2002, respectively); he was not counseled; contrary to the RS certification, he did not receive a copy when the report was completed (he says he obtained a copy before his departure from Bahrain in July 2002); and he deserved a better report. This report is not adverse in marks or comments. Petitioner provided two supporting statements, from a Marine Corps lieutenant colonel and captain, to the effect the report was late and he performed well during the period in question.
c.       In correspondence at enclosure (2), the HQMC PERB commented to the effect that Petitioner’s application to correct his fitness report record warranted partial relief. They stated they had directed removing the contested section K’s and the word “quiet.” However, they concluded that the report for 13 March to 31 July 2001 should stand.
d.       In correspondence at enclosure (3), the HQMC Officer Counseling and Evaluation Section, Personnel Management Division commented to the effect that Petitioner’s failures of selection by the FY 2006 and 2007 Lieutenant Colonel Selection Boards should be removed on account of the PERB action.
e.       When Petitioner failed of selection by the FY 2008 Lieutenant Colonel Selection Board, his fitness report record had been corrected (enclosure (4) verifies this), but he was in a status of having failed of selection for promotion.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief, specifically, removal of his failures of selection to lieutenant colonel.

The Board concurs with enclosure (3) in finding Petitioner’s failures of selection by the FY 2006 and 2007 Lieutenant Colonel Selection Boards should be removed. The Board finds his failure of selection by the FY 2008 Lieutenant Colonel Selection Board should be removed as well, since he was considered by that promotion board as an officer who had failed of selection. The Board finds Petitioner should not have a remedial promotion board, as his consideration by a regular board, with a corrected fitness report record and status as not having failed of selection, will provide him adequate relief.

The Board substantially concurs with enclosure (2) in finding the fitness report for 13 March to 31 July 2001 should stand. If Petitioner is correct that he did not receive a copy of the report when it was completed, the Board finds this would not be a material error warranting relief, as the report is not adverse and, therefore, Petitioner had no right to make a statement; and he acknowledges that he obtained a copy only a few months after the RO’s action on the report. The supporting statements do not persuade the Board Petitioner deserved a more favorable evaluation.

In view of the above, the Board directs the following limited corrective action.



RECO M MENDAT ION:
a.       That Petitioner’s naval record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to lieutenant colonel as an officer who has not failed of selection for promotion to that grade.
b.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
c.       That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.
d.       That the remainder of Petitioner’s request be denied.
4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.
         
ROBERT D. ZSALMAN        JONATHAN S. RUSKIN
Recorder         Acting Recorder

 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.



W. DEAN P EIFFER
 Executive Director















DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103
IN~Pj~o REFER TO:
NMER/ PERB
p~
 L~3

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

~        Form 149 of 27 Apr 06
 (b)      MCO P1610.7E w/Ch 1-6
1. Per MCO 16l0.11C, the Performance Evaluation Review Board, with three members present, met on 2 August 2006 to consider
 ~        petition contained in reference (a). Modification of his fitness reports covering the periods 19980509 to 19990601 (TR), 19990801 to 20000229 (GC), and 20020720 to 20030531 (AN) was requested. Removal of his report covering the period 20010313 to 20010731 (AN) was also requested. Reference (b) is the performance evaluation directive governing submission of the report.
2. The petitioner contends that the comparative assessment on the reports covering the periods 19980509 to 19990601 (TR) and 19990801 to 20000229 (GC) should be expunged. On the report covering the period 19980509 to 19990601 (TR), he contends that the section “K” comments were erroneously submitted and that the comments were written on another Marine. He submits an advocacy letter from the reviewing officer in support of his assertion. On the report covering the period 19990801 to 20000229 (GC), the petitioner contends that the report is administratively incorrect because the reviewing officer comments do not agree with his comparative assessment marking. On the report covering the period 20010313 to 20010731 (AN), the petitioner contends the report is unjust because it was submitted late, he was not counseled, nor was he provided a copy of the report. On the report covering the period 20020720 to 20030531 (AN), the petitioner requested that the word “quiet” be expunged from section K4. He contends that the word “quiet” is adverse.

3. In its proceedings, the Board concluded that the reports covering the periods 19980509 to 19990601 (TR), 19990801 to
 Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

20000229 (GC) and 20020720 to 20030531 (AN) are administratively incorrect and procedurally incomplete as written and filed. The Board found that the report covering the period 20010313 to 20010731 (AN) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:

 a.       In regard to reports 19980509 to 19990601 (TR), the Board agreed with the petitioner that the reviewing officer comments were written for another Marine and directed that section “K” of the report be expunged in its entirety. The Board also directed that section “K 11 be expunged in its entirety on the report covering the period 19990801 to 20000229 (CC) because the reviewing officer comments state that the petitioner was a major when in fact he was a captain. The report is a grade change report, which is the petitioner’s last report as a captain; therefore, the reviewing officer comment - “One of the top 3 Majors in the Regiment” is inaccurate. This Headquarters has already corrected block 1(e), changing it from “maj” to “capt”.
b.       Concerning the report covering the period 20020720 to 20030531 (AN), the Board directed that the word “quiet” be deleted from the first sentence in the reviewing officer’s comments. After reviewing the report, the Board found that the word could be perceived in an adverse manner.
c.       In regard to the report covering the period 20010313 to 20010731 (AN), the petitioner contends the report should be expunged because it was submitted late, he was not counseled, nor was he provided a copy of the report; therefore, he believes it is unjust. The petitioner provides an advocacy letter from a lieutenant colonel that was not in his reporting chain who essentially attests to the same thing that the reporting senior states in his section “I’, comments - the report is late. However, he does not state that the report is inaccurate or unjust. When the Board reviewed the report, they found the report to be a fair assessment of the petitioner’s performance during the reporting period. Furthermore, they concluded that the petitioner failed to provide any evidence that he was not counseled during the reporting period. Therefore, they directed the report remain a part of the petitioner’s official file.



2
Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
          AD~I~C1RV OPINION ON BCNR ~      CASE OF




 4.       The Board’s opinion, based on deliberation and secret ballot
 vote, is that the contested fitness report, covering the period
 20010313 to      20010731 (AN), should remain a part o fficial military record. The Board also directed
 t at sections “K 11 on the reports covering the periods 19980509 to
19990601 (TR), 19990801 to 20000229 (CC) be expunged in their
entirety and the report covering the period 20020720 to 20030531
(AN) be modified as directed in paragraph 3(b) of this letter.

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

























3
DEPARTMENT ON’ THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VA 22134-5103
IN REPLY REFER TO:
1600
MMOA- 4
15 Sep 06
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BCNR PETITION FO

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



1. Recommend approval of4U~~~ I’ r~request for removal of his failure of selection from the FY06 and FY07 Lieutenant Colonel Selection Board.

2. Per the reference, we ~ record and petition. He failed selection on the FY06 and FY07 USMC Lieutenant Colonel Selection Board. Subsequently he petitioned and was granted relief by the Performance Evaluation Review Board (PERB) to have Reviewing Officer section K removed from TR report dated 19980509 to 19990601, CC report dated 19990801 to 2000022 and the word “quiet” expunged from Reviewing Officer comments on AN report dated 20020720 to 20030531. IB~I~I~IIhII ~I~equests removal of his failures of selection.

3. In our opinion, the petitioned reports did present competitive concern to the record that may have resulted in his failure of selection. Modification, of the reports will enhance the competitiveness o~gIUdMUUI~ record. Therefore, we recommend approval of his request for removal of his failures of selection.

4. Point of contact is Lieutenant Colonel J. M. Morrisroe, (703) 784-9281.



 J.       M. MORRISROE
 Lieutenant Colonel, USMC
Head, Officer Counseling and
Evaluation Section
Personnel Management Division
MEMORANDUM FOR THE RECORD

 DATE:    27Feb07




PARTY CALLE
 WHAT I ASKED: I aske I   e had corrected Pet’s OMPF prior to the FY
 08 USMC LtCol Bd convening.

 WHAT PARTY SA    formed me that Pet’s OMPF was corrected on 15 Aug06.




 BRIAN J. GEORGE
Performance Section
Board for Correction of Naval Records

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