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NAVY | BCNR | CY2007 | 08495-07
Original file (08495-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~5 100



 JSR
 Docket No. 08495-07
12 October 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
REVIEW OF NAVAL RECORD
Ref:     (a) 10 U.S.C. 1552
End:     (1) DD Form 149 dtd 19 Mar 07 w/attach ments
(2)      HQMC PERB memo dtd 14 Sep 07
(3)      Subject’s ltr dtd 9 O c t 07 less end is and e—mail of 10 Oct 07
(4)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, enclosure (1), with this Board requesting, in effect, that the applicable naval record be corrected by removing there from the fitness report for 2 March to 30 June 2003. A copy of this report is at Tab A. He further requested modifying the fitness report for 4 November 2004 to 30 June 2005 by raising the mark in section K.3 (reviewing officer (RO) “Comparative Assessment”) from the fifth best of eight possible marks to the third best. A copy of this report is at Tab B. As indicated in enclosure (2), the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) has directed modifying the report for 2 March to 30 June 2003 by deleting the following from section I (reporting senior (RS) “Directed and Additional Comments”): “[Petitioner’s] performance during this period was satisfactory.” and “A competent instructor who works hard to master his skill.”; and the PERB has directed modifying the report for 4 November 2004 to 30 June 2005 as requested. Finally, Petitioner requested removing his failures of selection for promotion to master gunnery sergeant (pay grade E-9) . He may submit to HQMC (NMPR-2) a request for remedial consideration for promotion on the basis of the PERB action and the further action recommended by this Board, if it is approved.
2.       The Board, consisting of Ms. Mann and Messrs. Morgan and Zsalman, reviewed Petitioner’s allegations of error and
 injustice on 12 October 2007, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies which were available under existing law and regulations within the Department of the Navy.
b.       Enclosure (1) was filed in a timely manner.
c.       In support of his application at enclosure (1), Petitioner provided a letter dated 15 June 2006 from the RO who reviewed the contested report for 2 March to 30 June 2003. He stated that after having taken advice and counsel from the RS, and after the report had been filed in Petitioner’s record, he discovered the RS had had an “agenda” regarding Petitioner. He said the RS’s counsel had “unduly and unfairly prejudiced” his evaluation of Petitioner. He further stated that he now felt several of the marks the RS had assigned, as well as the mark the RO had assigned in section K.3, should have been higher.
d.       Enclosure (2) is the report of the HQMC PERB in Petitioner’s case. As indicated above, the report reflects the PERB decision to modify the contested report for 2 March to 30 June 2003 and modify as Petitioner requested the report for 4 November 2004 to 30 June 2005. The PERB concluded that the report for 2 March to 30 June 2003, as it has been amended, is an overall positive report that should remain in Petitioner’s record. The PERB found the RO “does not give any specifics relative to what caused the [RS] to be biased.”
e.       In enclosure (3) , Petitioner maintains that the RO’s letter fully justifies removing the report for 2 March to 30 June 2003.
CONCLUSION:
Upon review and consideration of all the evidence of record, and notwithstanding enclosure (2), the Board finds an injustice warranting complete removal of the report for 2 March to 30 June 2003. The Board agrees with Petitioner that the RO’s letter raises enough doubt about the fairness of the report to warrant its removal. In view of the above, the Board recommends the following corrective action:









RECOMMENDATION

a.       That Petitioner’s naval record be corrected by removing the following fitness report and related material:
          Period of Report
          Date of Report   Reporting Senior         From    To
         30Jun03                  2Mar03   30Jun03
b.       That there be inserted in his naval record a memorandum in place of the removed report, containing appropriate identifying data concerning the report; that such memorandum state that the report has been removed by order of the Secretary of the Navy in accordance with the provisions of federal law and may not be made available to selection boards and other reviewing authorities; and that such boards may not conjecture or draw any inference as to the nature of the report.
c.       That the magnetic tape maintained by HQMC be corrected accordingly.
d.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
e.       That any material directed to be removed from Petitioner’s naval record be returned to this Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.
4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.
ROBERT D. ZSALMAN        JONATHAN S. RUSKIN
Recorder         Acting Recorder
5. The foregoing report of the Board is submitted for your review and action.
                                            
W. DEAN PFEIFFER
Executive Director
         

Reviewed and approved:
Robert T. Call
 A ssis tant General Counsel
 Manpower and Reserve Affa irs )

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