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NAVY | BCNR | CY2006 | 10210-06
Original file (10210-06.rtf) Auto-classification: Denied

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



 BJG
 Docket No: 10210-06
 12 April 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 12 April 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 (HQMC) Performance Evaluation Review Board (PERB), dated 8 November 2006, and the advisory opinion from the HQMC Manpower Information Operations, Manpower Management Information Systems Division (Mb), dated 21 February 2007, copies of which are 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 and the advisory opinion from MIO.
The Board noted that the contested service record page 11 counseling entry dated 15 February 2005 indicated your blood alcohol content was .08, while the reviewing officer stated, in the fitness report at issue for 15 January to 9 November 2005, that it was .12. However, the Board was unable to find what the correct measurement was. If the correct measurement could be established, the appropriate remedy would be to make an appropriate amendment to the disputed documentation, rather than remove it. Concerning your rebuttal to the contested page 11 entry dated 28 July 2005, you may submit it to HQMC (NMSB) for file in your record with the entry.

In view of the above, 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,







Enclosures
DEPARTMENT OF THE NAVY
HEADQU~ARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103
IN REPLY REFER TO:
1610
 MM ER/ PERB
 NOV 08 200 7


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

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

-        DForml49of2lJunO6
 (b)      MCO P1610 7E w/Ch 1—9
1.       Per MCO 1610 11C the Performance Evaluation Review Board, with three members present, met on 1 November 2006 to consider
 ~        contained in reference (a). Removal of the fitness report for the period 20050115 to 20051109 (TR) was requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report is unfair and unjust and should be removed because it contains incorrect and misleading information and statements. He believes the report is inaccurate because it encompasses three different reporting occasions.
3.       In its proceedings, the PERB concluded that the report covering the period 20050115 to 20051109 (TR) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:
a.       Per paragraph 5001 of reference (b), reporting officials are required to document and report unsatisfactory performance, lack of potential or unacceptable professional character. In this case, the Board found the reporting senior properly reported and recorded the petitioner’s unsatisfactory performance during this period. The petitioner’s only defense to the DUb incident is that he was never prosecuted; he does not deny that he was arrested for drunk driving. The Board also found that the third officer sighter does a thorough job of adjudicating the report when he wrote: “The bottom line is that the MRQ had an alcohol related incident while operating a POV. He admitted it. It happened. It was documented. It was serious enough to warrant this adverse report. That the local authorities decided not to prosecute the case does not obviate MRO’s involvement.” The Board found this to be incontrovertible evidence of unsatisfactory conduct on the part of the petitioner, which the command felt was serious enough to warrant reporting.
         b.       In regards to the petitioner’s claim of unfairness relative to a change of duty, the Board did not find sufficient grounds to warrant modification of the report. Per paragraph 3004.5 of reference (b), reporting officials must submit a change of duty (CD) report when the MRO has a significant change in primary duties under the same reporting senior. In this case, the Board found that it appears the petitioner served under the reporting senior as the “Senior Drill Instructor” directly responsible for the Physical Conditioning Platoon and Receiving Barracks as stated by the reporting senior in section “I”. The Board concluded that is does not appear that the duties and responsibilities of petitioner’s temporary assignment were significant enough to warrant submission of multiple reports.
         4.       The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness report, covering the period 20050115 to 20051109 (TR) should remain a part of Staff Sergeant official military record.
5.       The case is forwarded for final action.
         -
        
Ch a irperson, Perfor m ance
 Evaluation Review Board
 Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps


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