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NAVY | BCNR | CY2007 | 02719-07
Original file (02719-07.rtf) Auto-classification: Denied
                                    DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 BJG
 Docket No: 2719-07
 25 June 2007



This is in reference to your letter dated 14 March 2007 with enclosures requesting correction of your naval record pursuant to the provisions of title 10 of the United States Code, section
1552.
You requested that the fitness report for 17 August to 31 December 2004 be modified by changing section I (reporting senior (RS) comments) to reflect “Promote at soonest opportunity.” vice “Promote with peers.” You further requested that the following be removed from section K.4 (reviewing officer (RQ) comments): “[You] always [perform] to expected standards.” and “[You] would serve well in an independent assignment, able to accomplish goals without interference.” Finally, you again requested removing your failures of selection by the Fiscal Year 2007 and 2008 Lieutenant Colonel Selection Boards. This last request, which you made in your previous case, docket number 992-07, was denied on 15 March 2007.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 19 June 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 current application, together with all material submitted in support thereof, the Board’s file on your prior case, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the attached advisory opinion furnished by the Headquarters Marine Corps Personnel Management Division, dated 19 April 2007.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish probable material error or injustice. The Board recognized that the RS endorsement on your letter of 13 December 2006 to the Commandant of the Marine Corps recommended approving your request to change section I. However, the Board was unable to find his comment “Promote with peers.” was ambiguous or a veiled reference to your having previously failed of selection for promotion. The Board could not find the contested RQ comments violated the prohibition against damning with faint praise, or that they reflected the RO was using the fitness report as a counseling tool. Finally, the Board did not find these comments were “ de facto ” adverse. Since the Board found no defect in your performance record, it had no grounds to remove either of your failures of selection to lieutenant colonel. In view of the above, the Board again voted to deny relief. The names and votes of the members of the panel will be furnished upon request.

Although the Board voted not to modify the fitness report in question, you may submit your letter of 13 December 2006 with the RS endorsement to future selection boards.

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,



W.       DEAN PFEIFFER
Executive Director





Enclosure


























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




 IN REPLY REFER TO:
1610
MMER
19 Apr 07

MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    RECONSIDERATION IN THE CASE OF


(a) ltr of 14 Mar 07
 (b) DD Form 149 of 2 Sep 06
 (c)      PERB Memo for BCNR 1610 MMER/PERB of 30 Jan 07
1. References (a) and (b) have been reviewed. It is the position of the PERB that the information contained in references (a) and (b) are not sufficient to establish a factual basis to refute the accuracy fitness report for the period of 20040817 to2b041231(CIW
2. In reference (a), the petitioner contends that his case should be reopened because new evidence has been discovered. After reviewing his package, it appears no new evidence has been discovered. The petitioner simply continues to assert that verbiage should be changed in section “K” of the report. As indicated in reference (c), the PERB concluded that the current verbiage in section “~_:“ is clear and meets the spirit and inten se of the Marine Corps’ performance evaluation regulation. Additionally, the PERB determined that it would be inappropriate to include a letter explaining reporting officials’ intent in the petitioner’s official file. Most importantly, the PERB found the report to be administratively and procedurally correct and found no substantiation that an error or injustice had occurred.
3. In the petitioner’ s request, he submits as evidence a letter fro m      agrees with his assessment.
Unfortunately, PERB did not agree with their assessment, as indicated in reference (c). Furthermore,










Subj:    RECONSIDERATION IN THE CASE OF


fails to explain what additional insight that he can offer of the petitioner’s performanc e during the reporting period that could be considerate curate or unjust; he was not a reporting official. Therefore, his statement can only be regarded as an opinion and not new factual evidence.
4. The PERB declines to rehear case and returns the enclosure without action.



Head, Performance
 Evaluation Review a n d
 Personnel Management Division
By direction of the Commandant
of the Marine Corps

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