DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DCG 20370-5100
JSR
Docket No: 01143-08
10 July 2008
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 10 July 2008. 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
advisory opinion from Headquarters Marine Corps dated
27 May 2008, a copy of which is attached, and your letter dated
29 June 2008 with enclosure.
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 advisory opinion.
The Board was unable to find your refusal to alter a decision by
the previous commanding officer contributed to your having
received the counseling entry at issue. The Board found the
entry, while not detailed, was sufficiently specific to clarify
why you had been counseled. Concerning your allegation that the
reasons for giving you a formal counseling entry kept changing,
the Board noted the entry of record supersedes any preceding
versions that were not submitted for entry in your record.
The Board found the absence, from your fitness report for 4
December 2004 to 4 April 2005 (not on file in your record), of
any reference to the counseling entry in question or the matter
it addresses does not establish you had no behavior warranting
formal counseling. The Board found the contested counseling
entry was not a Marine Corps Separation Manual paragraph 6105
entry, as it makes no reference to administrative separation as
a potential result of failure to respond properly to the
counseling, and therefore, the requirement that such an entry be
Signed by a commanding officer was not applicable. The Board
found the 2 October 2006 e-mail from Colonel G--- did indicate
friction between you and Colonel K---, the officer who issued
the contested entry, but concluded it did not prove he was
biased against you. Your unsubstantiated assertion did not
persuade the Board that this officer had tried to be your
reporting senior. The Board found the delayed submission of the
fitness report for 4 December 2004 to 4 April 2005, on which
Lieutenant General M--- was the reporting senior, did not
prevent you from discussing the contested entry with him. The
Board did not accept your contention that the absence of
information reflecting Lieutenant General M---‘s position on the
entry at issue supported granting your request to remove it from
your record. The Board observed, contrary to your assertion,
that commanding officers and commanding generals do not have
authority to remove a counseling entry from the Official
Military Personnel File (OMPF) after it has been filed there.
Finally, the Board particularly noted that your rebuttal of 11
February 2005 to the contested entry acknowledged you did not
contact the Commander, Marine Forces Reserve when the “external
agency” called you.
Your rebuttal has been entered in your OMPF, but the rebuttal
and the counseling entry to which it relates are not together
(rebuttal in Service - Miscellaneous Folder, images 18 and 19
and counseling entry in Service - Contract Folder, image 42).
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,
Executive Di
Enclosure
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