DEPARTMENT OF THE NAVY

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

 

JSR
Docket No. 12759-09
19 February 2010

From: Chairman,:- Board for Correction of Naval Records

To: Secretary of the Navy

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REVIEW OF NAVAL RECORD

Ref: (a) 10 U.S.C. 1552

Encl: DD Form 149 dtd 22 Jul 09 w/attachment
HOMC MMER/PERB memo dtd 3 Dec 09
Subject’s ltr dtd 7 Feb 10 :

Subject's naval record

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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 therefrom the fitness report for 5 September 2008 to 16
April 2009. A copy of this report is at Tab A.

2. The Board, consisting of Messrs. W. Hicks, Spooner and
Swarens, reviewed Petitioner's allegations of error and
injustice on 19 February 2010, 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. The contested fitness report, evaluating Petitioner’s

performance as the operations officer of Marine Air Combat Group
(MACG)-28, is not designated as adverse by a mark in item 5.a of
section A. Of the 13 observed marks the reporting senior (RS)
assigned Petitioner, 10 are “B” (second lowest of seven possible
marks) and three are “C” (third lowest). Section C (*Billet

Accomplishments”) reads as follows:

- Led planning effort for the OIF [Operation

Iraqi Freedom] 09 workup exercises.

- Completed TPFDD [Time-Phased Force and Deployment
Data] for the Group HQ [Headquarters] and four
subordinate squadrons deployment to OIF. Efforts
resulted in correct flow of personnel and equipment

inte theater.

-~ Led planning effort for MACG-28 Detachment deployment
to Weapons and Tactics Instructor (WTI) Course 1-09.

- Participated in planning effort for MACG-28
Detachment deployment to DESERT TALON exercise.

_- Managed limited rifle range quotas due to range

Section
follows:

closure and met annual training requirements for
the Group HQ and subordinate squadrons and battalion.

I {RS‘s “Directed and Additional Comments”) reads as

- Intelligent and competent staff officer.

- Qualified and experienced, MRO [Marine reported on]
served as my S3 [staff operations officer] during a
challenging period as the Group prepared for
simultaneous deployments to OIF/OEF [Operation Enduring

Freedom] .
- Knowledgeable air C2 [command intelligence officer],

MRO achieved results in assigned tasks.
- Adept at coordinating issues with higher headquarters.

- I would rank MRO #12 of 12 LtCols [lieutenant

colonels] currently assigned to my Group.
- Demonstrates potential for success and productive

service.

In section K.3 (reviewing officer (RO)’s “Comparative
Assessment”), Petitioner was assigned the third Lowest of eight
possible marks, with no peers marked lower. Section K.4 (RO's

comments) reads as follows:

- Seasoned operations officer with a solid grasp of
C2 matters.
- Expertise proved helpful as the Wing prepared for

OIF/OEF deployments.
- Strong team builder who works well with peers and
subordinates.
- Screened/slated for squadron command, MRO is ready
for the opportunity and challenge.

d. Petitioner contends that the contested fitness report
violates the applicable fitness report order, Marine Corps Order
P1610.7F, in that it reflects “faint praise”; the marks reflect

marginal performance without any corroboration in the narrative;
the last two bullets in section I are adverse comments that were
not referred to him, as they should have been, for his
acknowledgment and an opportunity to make a statement; the flaws
attributable to the RS unfairly prejudiced the mark assigned in
section K.3; the marks are inconsistent with the comments in
sections C, I and K; Petitioner was never counseled on his
performance, so the report at issue came as a surprise to him;
and the report was unduly vague. He also contends that he and
the RS were not physically close, so the RS may not have been
fully aware of the key role Petitioner had played in

MACG-28‘s operational performance.

e. Enclosure (2) is the report of the Headquarters Marine
Corps (HQMC) Performance Evaluation Review Board (PERB) in
Petitioner's case. The report reflects the PERB decision to
deny his request. The PERB found no merit in any of his
contentions. Concerning the RS’s comment that he ranked
Petitioner number 12 of 12 lieutenant colonels assigned to the
Group, the PERB said “it’s quite possible that all 12 are
stellar performers,” so the comment is not inherently adverse.
The PERB did not expressly address Petitioner’s contentions that
the last bullet in section I is adverse; that the marks are
inconsistent with the comments in sections C, I and K; that
Petitioner was never counseled on his performance; and that the
contested report is unduly vague.

£. Enclosure (3) is Petitioner’s response to the PERB
report, reflecting his virtually complete disagreement.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding the contents of enclosure (2), the Board finds
an injustice warranting partial relief, specifically, removal of
the last two bullets in section I.

The Board agrees with Petitioner that these are adverse comments
that should have been referred to him for acknowledgment and a

chance to submit a statement, but were not. Concerning the
ranking comment, the Board notes the report in question does not
reflect that the 11 colonels with whom Petitioner was compared
were “stellar performers.” The Board finds referring the report
to Petitioner at this late date would not provide adequate
relief.

The Board otherwise substantially concurs with the PERB report.
The Board finds that the marks and comments of the contested
report are not inconsistent; that the report gives no indication
of any deficiency that would have required counseling; that the
report does not reflect “faint praise”; and that the report is
sufficiently specific. The Board finds that upon removal of the
last two bullets from section I, the remainder of the report is
valid and should remain in Petitioner’s record.

In view of the above, the Board recommends the following limited
corrective action:

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing
the last two bullets from section I of the fitness report for 5
September 2008 to 16 April 2009, dated 18 April 2009 and signed
by Colone ieee: UsMc. The bullets to be removed
read as follows:

 

- I would rank MRO #12 of 12 LtCols currently
assigned to my Group.

- Demonstrates potential for success and productive
‘service.

b. 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.

ec. 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.

d. That the remainder of Petitioner’s request be denied.

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.
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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 PF ER

Reviewed and approved:

FM 2023/2

Assistant General Vounsel
Manpower and Reserve Affairs)