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NAVY | BCNR | CY2007 | 01458-07
Original file (01458-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 BJG
 Docket No: 1458-07
 9 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.
It is noted that the Commandant of the Marine Corps (CMC) has directed modifying the contested fitness report for 13 May to 31 October 2005 by removing section K.4 (reviewing officer’s comments)
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 6 February 2007, 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.
 /
 Specifically regarding the contested fitness report for 13 May to 31 October 2005, the Board was unable to find this report was influenced by the ongoing investigation in your case. Concerning the contested report for 1 November 2005 to 13 January 2006, the Board noted this report did mention your performance of duty, commenting favorably on it. The Board was unable to find the reporting senior (RS) lacked sufficient basis to make the findings reflected in the report. The Board was likewise unable to find the Commanding Officers of MAG-24 and HMH-463 unduly influenced the report. Finally, the Board duly noted enclosure (5) to your application, which indicated a chief warrant officer 4 was required to amend two of the RS comments in the report. The Board was unable to find the RS did not authorize and approve the changes made.
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.




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,



Enclosure



































DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103
IN REPLY REFER TO:
 1610
 MM ER/ PERB
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 4 Oct 06
 (b) MCO Pl610.7E w/Ch 1-9
1.       Per MCO l6lO.llC, the Performance Evaluation Review Board, with three members present, met on 31 January 2007 to consider
contained in reference (a). Removal of the fitness reports for the periods 20050513 to
 20051031 (CH) and 20051101 to 20060113 (TD) was requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report{~ should be removed because they do not comply with reference (b).
3.       In its proceedings, the PERB concluded that the report covering the period 20050513 to 20051031 (CH) is administratively incorrect and procedurally complete as written and filed. The report covering the period 20051101 to 20060113 (TD) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:
a.       Per paragraph 40l2.5m of reference (b), comments identifying minor limitations, shortcomings, occasional lapses, or weakness in an otherwise overall positive performance serve no constructive purpose, and foster a zero defect mentality. The Board found that the comments in section “K-4” of the fitness report covering the period 20050513 to 20051031 (CH) are negative in nature and not in compliance with reference (b) . Therefore, the Board directed that section “K-4” be expunged in its entirety. This action will make the report administratively correct and procedurally complete.
                  b.       Per paragraph 5001.1 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 that the report covering the period 20051101 to 20060113 (TD) was rendered adverse because of poor judgment and loss of confidence in the petitioner. After reviewing the third officer sighter’s comments, the Board concluded that he did an exceptional job of adjudicating the report. Finally, the Board found that the Criminal Investigation Division (CID) report that the petitioner introduces is irrelevant. The Board also concluded that the petitioner does not provide any substantive evidence to support his claim that the report is non compliant with reference (b).

4.       The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness reports should remain a part official military record with the exception of the correction outlined in paragraph 3 (a) of this letter.
5.       The case is forwarded for final action.


         Chairperson, Performa n ce
 Evaluation Review Bo ar d
Personnel Manageme nt Division
 Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps













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