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NAVY | BCNR | CY2006 | 10975-06
Original file (10975-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370~5 100


 BJG
          Docket No: 10975-06
 26 January 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 25 January 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 13 December 2006, 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, except the statement, in paragraph 2, that you believe the contested fitness report for 10 September 2004 to 25 June 2005 implies the delay in your receiving orders was due to your command’s lack of diligence. The Board noted your contention
 was that the report implies the delay in your receiving orders was your fault, when it actually was due to your command’s lack of diligence. The Board further observed this report includes no statement about a delay. The Board noted that while the investigation cited in the contested fitness report for 1 July to 9 September 2004 was dated 10 September 2004, one day after the period of the report, the report was not submitted until 25 March 2005. The Board found the documentation at enclosure (2) to your application did not establish a material error in the findings of the investigation. Your having paid the cellular telephone bill to which the fitness report refers did not refute the reporting senior’s statement that you “demonstrated poor judgment in using government cell phone
         to make over 400 calls to subordinate Marine. . .“ The statement at enclosure (4) to your application, from the spouse of the Marine with whom you had an allegedly unduly friendly relationship, did not persuade the Board that the fitness report incorrectly characterized this relationship. Finally, the Board found the third sighting officer did not add new adverse material requiring referral to you for a chance to make a statement. 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,



ROBERT D. ZSALMAN
Acting Executive Director
Enclosure























DEPARTMENT OF THE NAVY
I-IEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
                                                      QUANTICO, VIRGINIA 22134-5103

                           IN REPLY REFER TO:
                                                                                           1610
                                                                                          MMER/ PER B
                                                                                          DEC 1 3 2006

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERE) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

(a) DD Form 149 of 5 Sep 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 6 December 2006 to consider
 ~         contained in reference (a) Removal of the fitness reports for the periods 20040701 to
20040909 (DC) and 20040910 to 20050625 (TR) was requested.
Reference (b) is the performance evaluation directive governing
submission of the reports.
2. The petitioner contends the report covering the period
20040701 to 20040909 (DC) should be removed because it is unfair and unjust and because it was used as a disciplinary tool. He also believes the report is not procedurally correct because it was submitted late. He believes that the fitness report covering the period 20040910 to 20050625 (TR) contains an inaccurate statement and implies the delay in his receiving PCS orders was June to his command’s lack of due diligence.
3. In its proceedings, the PERB concluded that the reports
covering the periods 20040701 to 20040909 (DC) and 20040910 to
20050625 (TR) are administratively correct and procedurally
complete as written and filed. The following is offered as
relevant:
a.       Concerning the fitness report covering the period 20040701 to 20040909 (DC), per paragraph 1005 of reference (b), reporting senior’s are prohibited from using the report as a disciplinary or counseling tool. In this case, the Board found that the petitioner does not offer any substantive evidence to support his claim. Therefore, the Board did not agree with the petitioner’s argument that the report was used as a counseling tool.
Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

b.       Per paragraph 5001.1 of reference (b), reporting seniors are required to document and report unsatisfactory performance, lack of potential or unacceptable professional character. In this case, the Board found that the petitioner does not provide any substantive evidence to support his claims of injustice. After reviewing the report, the Board found that the report was rendered adverse due to the petitioner’s personal interactions with a subordinate; disobeying a direct order to discontinue said interactions; and misuse of government property. The Board also found that the third officer sighter did a thorough job of adjudicating the report.
c.       Per paragraph 8010 of reference (b), late submission is unacceptable, however it does not render a report invalid. In regard to the report covering the period 20040910 to 20050625 (TR), the Board found that it does not appear that the petitioner was at a disadvantage nor is there any evidence to substantiate that the command intentionally held the report in order to manipulate the circumstances.
4.       The Board’s opinion, based on deliberation and secret ballot
 vote, is that the contested fitness reports covering the periods
20040701 to 20040909 (DC) and 20040910 to 20050625 (TR) should
remain a part military record.
5. The case is forwarded for final action.




Chairperson, Performance
Evaluation Review Boar d
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps






2

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