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NAVY | BCNR | CY2007 | 01480-07
Original file (01480-07.rtf) Auto-classification: Denied
                                    DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 BJG
 Docket No: 1480-07
 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 removing the contested fitness report for 3 October 2003 to 31 March 2004; and Headquarters Marine Corps (HQMC) has directed modifying the fitness report for 22 April to 6 July 2004, as you requested, by changing section A, item 3.a (“Occasion”) from “AN” (annual) to “TR” (transfer).
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 8 March 200. 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 HQMC Performance Evaluation Review Board (PERB), dated 9 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 in concluding the contested fitness report for 31 March to 21 April 2004 should stand.
The Board found it was an immaterial error that the period began on the same day the previous report had ended. The Board agreed with you that section A, item 7 (“Recommended for Promotion”) should not have been marked in item 7.c (“N/A” (not applicable)), as the criteria for that mark established by Marine Corps Order (MCO) P1610.7E, paragraph 4003.7.c, were not met. However, you have not exhausted your administrative remedies, as you have not asked the reporting senior to take appropriate corrective action in accordance with MCO P1610.7F, paragraph 8007.1.b. Finally, the Board was unable to find the adverse marks reflected you were evaluated for your nonjudicial punishment only, rather than the entire period covered.
In view of the above, your application for relief beyond that effected by CMC and I-{QMC 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
                                                                                                    M M 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 APPL ION IN THE CASE OF

~        Form 149 of 25 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 31 January 2007 to consider contained in reference (a). Removal of the fitness reports for the periods 20031003 to 20040331 (AN) and 20040331 to 20040421 (DC) was requested. Modification of the fitness report for the period 20040422 to 20040706 (AN) was also requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report covering the period 20031003 to 20040331 (AN) has multiple errors with the most significant one being that the report was not referred to him for acknowledgement. The petitioner claims that the report covering the period 20040331 to 20040421 (DC) also contains multiple errors with the primary one revolving around the reporting senior’s marking of adverse in performance as a result of the Non-judicial Punishment (NJP). He suggest that he was not afforded the opportunity to acknowledge the report prior to the reviewing officer making his comments. Finally, the petitioner claims that the occasion code on the report covering the period 20040422 to 20040706 (AN) is incorrect.
3.        In its proceedings, the PERB concluded that the report covering the period 20031003 to 20040331 (AN) is administratively incorrect and procedurally complete as written and filed. Further, the Board concluded that the reports covering the periods 20040331 to 20040421 (DC) and 20040422 to 20040706 (AN) were administratively correct and procedurally complete as written and filed. The following is offered as relevant:







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

a.       Per paragraph 4003.6c and 5001.2 of reference (b), all disciplinary action must be reported via a DC report and the MRO should be provided an opportunity to acknowledge all adverse reports. In this case, the Board found the report covering the period 20031003 to 20040331 (AN), the reporting senior improperly rendered the report adverse by marking section “A”, item 6c for disciplinary action and makes negative comments in section “I”. The Board also found that the reporting senior failed to provide the report to the petitioner for appropriate action and directed that the report be expunged from the petitioner’s record.
b.       Concerning the fitness report covering the period 20040331 to 20040421 (DC), per paragraph 4003.6c and 5001.2 of reference (b), the Board found the reporting senior properly submitted a “DC 11 report after the petitioner received NJP on 20 April 2004. The Board also found that when provided the opportunity, the petitioner declined to make a statement. The petitioner claims that he was transferring to another duty station and was not provided enough time to submit a statement. After thorough review, the Board found that the petitioner does not provide any substantive evidence to support this claim.
c.       Regarding the petitioner’s assertion that the occasion code on the report should have been marked “TR” vice “AN 11 , the Board agreed with him. Therefore, this Headquarters administratively changed the occasion code on the report in accordance with reference (b).
4.       The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness reports covering the periods 20040331 to 20040421 (DC) and.Q904042 2 to 20040706 (AN) should remain a part of military record with the exception of the correction outlined in paragraph 3(c) of this letter. The report covering the period 20031003 to 20040331 (AN) will be expunged in its entirety.

















2
Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

5. The case is forwarded for final action.
                   ~
         ‘       

                  Chairperson, Performa e
 ~        Evaluation Review B oa rd
 Pers onnel M anagement Division
 Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

































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