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NAVY | BCNR | CY2007 | 05769-07
Original file (05769-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5ioO



 BJG
 Docket No:5769-07
 25 July 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 19 July 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 June 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 PERE.
The Board was unable to find you had not been counseled about your performance before you received the contested fitness report. In this regard, the Board generally does not grant relief on the basis of an alleged absence of counseling, as counseling takes many forms, so the recipient may not recognize it as such when it is provided. The Board was likewise unable to find the reporting senior erred by indicating you had been relieved for cause. The Board found no requirement for the third sighting officer to sign the contested report before your detachment from the command. The Board noted that although you signed the report in block J.2 on 13 December 2004, after the reviewing officer had signed it on 8 December 2004, your statement in reply to the report was dated 21 December 2004. The Board could not find the report was based in any way on your custody dispute with an ex- girlfriend . If it was improper for the service record page 11 counseling entry dated 17 November 2004 to refer to a competency review board proceeding that did not result in your reduction in grade, the Board found this error would not support removing the contested fitness report. Finally, the Board found the command’s failure to submit a transfer fitness report on you would not justify removing the report at issue.
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,



                                                                                                                     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:
          MM ER/PERB
 JUN 06 2007
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 T
                   ____   


                (a)DD Form 149 of 27 Nov 06
         (b)      MCO P1610.7E w/Ch l—9

1.       Per MCO 161Q.11C, the Performance Evaluation Review Board, th three members present, met on 30 May 2007 to ~
 petition contained in reference (a) . Removal of the fitness report for the period 20040928 to 20041012 (CD) was requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report is unjust because the report only covers two weeks. He also contends that it is unjust because he was held responsible for the unit failing a MCAAT inspection for which he was not present. Finally, he contends that he was never counseled regarding his performance.
3.       In its proceedings, the PERB concluded that the report 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 must document and report all unsatisfactory performance, lack of potential or unacceptable professional character. In this case, the Board found the adverse nature of the report centers around the petitioner’s administrative section failing a MCAAT inspection, which resulted in the reporting senior’s loss of confidence in him. It is irrelevant that the reporting period only covers a two week time span. The reporting senior has the prerogative to write an observed report if he contends that he has sufficient and meaningful observation of the petitioner’s performance.




b.       The petitioner also argues about signature inconsistencies. The Board found that it is clear that the petitioner had the opportunity to rebut the reporting senior comments, and the reviewing officer addressed the factual inconsistencies between the reporting senior and petitioner. The Board also found that the reviewing officer provides succinct adjudication of any factual differences between the petitioner and the reporting senior. Finally, the Board found that the petitioner did not sign section “K6”, certifying that he had an opportunity to rebut the reviewing officer’s comments. However, this headquarters contacted the petitioner and gave him ample opportunity to submit his rebuttal. No response was received and the Manpower Management Support Branch addressed this fact as supplemental material to the report and it is a matter of the petitioner’s record.
4.       The Board’s opinion, based on deliberation and secret ballot part
record.
5.       The case is forwarded for final action.

Chairperson, Pe rfo rmance
                   Evaluation Review)Board
          Personne1 Managent Division
 Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps











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