DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

JSR
Docket No: 9114-08
4 December 2008

 

This ig in reference to your application for correction of your
naval record purguant 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 4 December 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 (HOMC) dated 5
August 2008 and the report of the HQMC Performance Evaluation

Review Board (PERB) dated 17 September 2008, copies of which are
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 advisory opinion
and the report of the PERB. Accordingly, your application has
been denied. The names and votes of the members of the panel
will be furnished upon request.

Tt 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,

Lorn $3).

W. DEAN PFE
Executive Diec\o

Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON

WASHINGTON, DC 20350-3000
IN REPLY REFER TO:

1070
JAM5

AUG 05 2008

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 

   
   
 

 

Subj: BOARD FOR CORRECTION OF SO

APPLICATION
CASE OF sl iat,

Ref: (a) MCO 1610.11C

 

1. _2ou requested an advisory opinion on aoa eer ees
Oe ereinafter “Applicant”) application, requesting to
remove his fitness report covering 9 November 2005 to 12 January
2006.

  
 

2. We recommend that Applicant’s request for relief be denied.
Our analysis follows.

3. Background

a. On 15 October 2005, Applicant was charged with
misdemeanor battery in Escambia County Florida. Applicant was
involved in a domestic dispute with his girlfriend. Applicant
alleges that when he attempted to remove himself from the
situation, his girlfriend called the police and alleged that
Applicant had choked her. Applicant’s case was handled as a
plea bargain to a diversion program requiring him to complete
counseling classes. On 16 January 2006, Applicant’s case was
forwarded to a Case Review Committee (CRC) and was classified as
Level IV for physical abuse with high risk. On 31 May 2006,
Applicant’s case was closed as resolved.

b. On 7 May 2008, Applicant submitted a request to the
Board of Corrections of Naval Records (BCNR) to have his fitness
report removed on the grounds that he was not afforded the
opportunity to present his case to the CRC or defend himself

with legal counsel. Additionally, Applicant argues that the CRC
finding of “Level Iv” abuse is not meant to result in punitive

consequences, but that in his case it resulted in a subsequent
adverse fitness report.
Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLI

CATION
IN THE CASE Of mescatl

 
    

4. Analysis

a. Applicant mischaracterizes the reason for the adverse
fitness report as resulting from the CRC committee finding of
abuse. Although the adverse report mentions the CRC finding,
the report also states “[t]he basic facts surrounding the
circumstances that generated this report are a matter of public
record - both the arrest record and the agreement to enter
pretrial diversion in lieu of a trial.”

b. An adverse fitness report is a tool used by the command
to annotate performance. Applicant’s charges were criminal in
nature and were properly documented by the adverse fitness
report. Applicant’s chain of command was in the best position
to determine the facts surrounding the case and that
determination should not be second-guessed now.

5. Conclusion. Accordingly, we recommend that Applicant’s
request for relief be denied. Furthermore, it appears this
appeal should properly go before the Performance Evaluation
Review Board as a matter under their cognizance per the
reference.

6. This advisory opinion contains privileged attorney-client
work product and is provided solely to BCNR. Please contact the
Military Law Branch at (703) 614-4250, if you seek to release
this memorandum.

G. L. SIMMONS

Head, Military Law Branch
Judge Advocate Division

By direction of the

Commandant of the Marine Corps
DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD
QUANTICO, VA 22134-5103 IN REPLY REFER TO:

1610
MMER/PERB
SEP 1 7 20U6

 

 

 

 

 

 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 

 

 

 

 

 

 

 

Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY Oe ON BCNR PE eed EN ane CASE OF _

 

 

 

 

 

 

 

 

 

    

 

Ref: MDD Form 149 of 7 May 08

(b) P1610.7E w/ch 1-9.

 

 

1. Per MCO 1610.11C, the Performance Evaluation Review Board,
with three Faas present ; met on 27 August 2008 to consider
wae aaa etal i Mag petition contained in reference (a).
Removal of che fitness report for the period 20051109 to 20060112
(DC) was requested. Reference (b) is the performance evaluation
directive governing submission of the report.

  
 

2. The petitioner received this adverse report for substantiated
Level IV spouse abuse. He now argues that this report is unjust
for several reasons. In support of his appeal he submitted a
personal statement, copies of court documents and a family
advocacy case review.

3. In its proceedings, the Board concluded that the report is
administratively correct and procedurally complete as written and
filed. The following is offered as relevant:

a. The petitioner argues that although he was charged with
Misdemeanor Battery by the state of Florida, the charges were
subsequently dismissed. The legal documents provided with this
appeal indicate that the petitioner participated in a pre-trial
diversion program. Paragraph 4003.6d of reference (b) states,
“Tt is immaterial whether as a result thereof, probation is
imposed; a sentence is executed; execution of a sentence
deferred, delayed, or suspended; or, by local law, custom, or
procedure, charges are dismissed or expunged from civil courts’
records after payment of fine, completion of a term in jail or
penitentiary, or completion of a period of probation. These
actions do not change the character of the initial misconduct.”
Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
oe ee oe | BONE Ae cL oh I THE CASE OF

 

 

 

 

 

 

 

 

 

b. The petitioner discusses actions taken by both him and
“the victim” in the time period after the incident prompting the
charges. The Board assumed this information was included as an
attempt to mitigate the petitioner’s alleged behavior. The Board
found that this information has no bearing on the fitness report.

c. The petitioner submitted a rebuttal to the report in which
he accepted full responsibility for his actions and deemed them a
“one time incident”. The rebuttal to the report was the
petitioner’s best opportunity to make any attempt to deny or
mitigate his actions. Had he done so, the reporting officials
would have had the ability to adjudicate the report.

d. The Board notes that the letter from the Manager,
Counseling Services states that although the petitioner did self-
refer to the Counseling Services, soon after, his case was

transferred within the Family Services from his last duty station
to his new one.

  

In conclusion, the Board found tha viieiieasididllaéalliliet tae
mbit. not met his burden of proof that the report was
unjust. The petitioner was found to be substantiated Level IV
for physical abuse with high risk. The Board found that this was
an appropriately submitted adverse report.

5. The Board’s opinion, based on deliberation and secret ballot
vote, is that the contested fitness report covering the period
20051109 to 20060112 (DC), should remain a part of@— i
Sa MANOR Official military record.

  

G

   

 

ES S. POLETO

Chairperson, Performance
Evaluation Review Board
Manpower Management Division
Manpower and Reserve Affairs
Department

By direction of the Commandant
of the Marine Corps