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NAVY | BCNR | CY2007 | 06199-07
Original file (06199-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 BJG
 Docket No:6199-07
 10 August 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 9 August 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 5 July 2007, a copy of which is attached. The Board also considered your rebuttal letter dated 20 July 2007 with enclosures.
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.
The Board found no requirement for the command to share with you the report of an investigation that concerned another individual. The Board noted that the contested fitness report informed you of the findings that pertained to you and that you were afforded an opportunity to make a statement in reply. The Board recognized that your statement did not expressly acknowledge that you had committed any misconduct; rather, it acknowledged that the incident referenced in the contested report had occurred and that you had exercised “poor judgment.” The Board did not find it objectionable that the report was submitted soon after you had been counseled, noting that it had to be submitted on the occasion of your transfer. The Board did not find it objectionable that the report included findings from an investigation of another individual, nor could the Board find the report was used as an improper substitute for disciplinary action. The Board noted the absence of a mark in item 6.b means the report of derogatory material about you came from within the fitness reporting chain, not above the reporting senior (RS) level. It does not mean, as you suggest, that the RS was not convinced you had committed any offense. The Board did not agree with your contention that the RS should have included a statement about the investigation only if criminal allegations had been substantiated. Finally, the Board did not find the marks the RS assigned you too low to be consistent with his favorable comments or those of the reviewing officer.

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 PFEIFFFER
Executive Director







 Enclosure










DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VA 221 34-51 03       :
                                    MM ER/ PERB
                                                                                                    JUL 052007



MEMORANDUN 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 8 Feb 07
 (b)      MCO P1610.7F
 (C)      JAGINST 5800.7C (JAG MANUAL)
1.       Per MCO 1610.llC, the Performance Evaluation Review Board,
 wath three members prese t met on 20 June 2007 to consider
~         contained in reference (a)
 Removal of the fitness report covering the period 20060501 to
20060803 (TR) was requested. Reference (b) is the performance
 evaluation, directive governing submission of the report.
2.       The petitioner contends that the report is in error, since she was under the impression she was the subject of a preliminary inquiry and not a “command investigation” as stated by the reporting senior and reviewing officer. She also believes she was denied due process on the investigative matters.
3.       In its proceedings, the Board concluded that the report covering the period 20060501 to 20060803 (TR) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:
a.       Reference (c) defines a Command Investigation as “An administrative investigation conducted into an incident of primary interest to command authorities. It need not be forwarded to JAG.” Reference (c) further defines an “Administrative Investigation” as an investigation to collect and record information; these reports are advisory. Their opinions, when expressed, do not constitute final determination or legal judgments, and their recommendations, when made, are not binding upon convening or reviewing authorities.
b.       After reviewing the report, the Board found that the adversity of the report centers on poor judgment, lack of
 Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF


integrity, and failure to maintain Marine Corps core values; it is not about charges under the Uniform Code of Military Justice (UCNJ). The Board also found that the petitioner does not substantiate the command investigation was improperly conducted or that she was not afforded the necessary due process such an investigation warrants. The fitness report simply addressed the findings from the investigation that apply to the petitioner. Finally, the Board found that when she had a chance to acknowledge and rebut the adversity, she admitted to her complicity and display of poor judgment.
4.       The Board’s opinion, based on deliberation and secret ballot
 vote, is that the contested fitness report, covering the period
 20060501 to 20060803 (TR), should remain a part o official military record
5. The case is forwarded for final action.


J.       ‘. TERRY ~Chairperson, Performan~e
 Evaluation Review Board) ~~onnel Management -~ivi Si Ofl Manpowef~and Reserve Affairs Department
By direction of the Commandant of the Marine Corps















2

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