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

BJG
Docket No: 7166-01
26 March 2003

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.

It is noted that the Commandant of the Marine Corps (CMC) has directed removal of the contested fitness report for 1 January to 2 February 1996. On the basis of that action, CMC also granted you remedial consideration for promotion to gunnery sergeant (pay grade E-7) for calendar year (CY) 1999.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 20 March 2003. 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 (HQMC) Performance Evaluation Review Board (PERB), dated 5 September 2001, the advisory opinion from the HQMC Enlisted Promotion Section, Promotion Branch (MMPR-2), dated 26 October 2001, and a memorandum for the record dated 18 March 2003, copies of which are attached. The Board also considered your rebuttal letter dated 30 July 2002 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 concluding that no further correction to your fitness report record was warranted, the Board substantially concurred with the comments contained in the report of the PERB.

Specifically concerning the contested fitness report for 1 January to 7 September 1994, the statements at Tabs J, K and L to your application did not convince the Board that you had a personality conflict with the reporting senior (RS), or that you deserved a better report. The Board observed that in any event, a subordinate has an obligation to get along with superiors. The Board did not find the item 16 mark of “Be Glad” (to have in time of war) to be inconsistent with the section C comments.

Regarding the contested “not observed” fitness report for 3 February to 5 May 1996, the Board was unable to find you did have or should have had a medical waiver from taking the physical fitness test (PFT). The Board found the deaths of three members of your family, while certainly an unfortunate tragedy, did not make it improper to document your PFT failure.

With respect to the contested transfer fitness report for 6 May 1996 to 4 January 1997, the Board noted the statement of the RS at Tab C to your application did not assert you were in compliance with weight standards, just that you were making satisfactory progress; and that his comment, in the fitness report, about weight control was not made by his own choice. The Board was unable to find this established improper command influence was brought to bear on the RS, as they found it would have been proper for the reviewing officer to direct mentioning the matter of weight control. Finally, the Board observed the transfer report did acknowledge that you were making satisfactory progress in weight control.

You also requested remedial consideration for promotion to gunnery sergeant for Fiscal Year (FY) 1996 through FY 2001. The gunnery sergeant promotion boards before which you failed of selection were those for calendar year (CY) 1995 through CY 1999. CMC has granted you remedial consideration for CY 1999, on the basis of your corrected record, which did not include the fitness report for 1 January to 2 February 1996 or the documentation of your general court-martial (GCM) of 6 November 1996. CMC has agreed to give you remedial consideration for CY 1997 and CY 1998 as well. The Board found you did not rate remedial consideration for CY 1995 or CY 1996, as neither the fitness report for 1 January to 2 February 1996 nor the GCM documentation was available to either of those promotion boards.

In view of the above, your application for relief beyond that effected by CMC 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 PFEIFFER
Executive Director

Enclosures

DEPARTMENT OF THE NAVY
HEAL..EUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103
		
		IN REPLY REFER TO:
		1610

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj:
	
	Ref:	(a)      SSgt.	DD Form 149 of 7 Jul 01
(b)	MCO P 0.7C w/Ch 1-6
(c)	MCO P1610.7D
(d)	MCO P1610.7D w/Ch 1

1.	Per MCO 1610.11C, the Performance Evaluation Review Board, with three members, resent, met on 5 September 2001 to consider Staff Sergeant petition contained in reference (a) -Removal of the following fitness reports was requested:
	a.	Report A	— 940101	to	940907	(CH)	— Reference	(b)	applies
	b.	Report B	— 960101	to	960202	(CH)	— Reference	(c)	applies
	c.	Report C	— 960203	to	960505	(CH)	— Reference	(c)	applies
	d.	Report D	— 960506	to	970104	(TR)	— Reference	(d)	applies

2.	The petitioner believes that since he was acquitted of all charges during the conduct of a general court-martial, removal of the fitness reports identified above is proper. He argues, via legal counsel, that once the allegations were made in January 1996, his relationship with the command was immediately tainted. In the brief included with reference (a), several allegations of administrative error and bias have been surfaced, with myriad items of documentation furnished in support of the appeal.

3.	In its proceedings, the PERB concluded that:

a.	Reports A, C, and D are administratively correct and procedurally complete as written and filed. The following is offered as relevant:

(1)	While the petitioner may believe the mark of “Be Glad” in Item 16 of Report A does not correspond with the

Subj:

remainder of the entries in Section B, the Board emphasizes that each mark and rating is a separate an independent entry. Simply XXXX stated, one is not dependent on the other; nor is one mark viewed as a summary of others. In this case, the Reporting Senior recorded his judgment regarding his desirability to have the petitioner under his command in the future. The chosen mark is neither “adverse” nor inconsistent with the remainder of the report.

(2)	The Board acknowledges that Report A was prepared and submitted late. However, we also stress that the Reviewing Officer sufficiently explained the reason. In this regard, we discern neither an error nor an injustice.

(3)	In the case of Report C, the Board rejects the argument that the report is an “oxymoron” because it is a “not observed” adverse evaluation. What needs to be understood is that any “not observed” fitness report can be rendered adverse by virtue of certain entries. This is especially true when a Marine fails a scheduled Physical Fitness Test (PFT) - Such is the situation with Report C, and it was prepared in full compliance with reference (c) -

(4)	Report D was rendered adverse because of the petitioner’s failure to remain within proper height/weight standards. We specifically note that when he acknowledged the adverse nature of the report (evidence his signature in Item 24), he chose to omit any statement in his own behalf. In so doing, he passively concurred in the accuracy of the recorded information without providing any matters in extenuating or mitigation. We find nothing included with reference (a) to counter either the accuracy or fairness of Report D.

b.	Not withstanding the letter from petitioner’s counsel and the documentation furnished with reference (a), the Board is not convinced or otherwise persuaded that Report A, C, and D reflect anything other than accurate and objective appraisals of the petitioner’s performance during the stated periods. The Board concludes that the allegation of bias has not been proven.

c.	The removal of Report B is warranted and has been directed.

Subj:

4. The Board’s opinion, based on deliberation and secret ballot vote, is that Reports A, C, and D should remain a part of Staff Sergeant	official military record.

5. The case is forwarded for final action.

Chairperson, Performance
Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

3
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
MANPOWER AND RESERVE AFFAIRS DEPARTMENT
HARRY LEE HALL, 17 LEJEUNE ROAD
                                                                                QUANTICO, VIRGINIA 22134-5104	
				IN REPLY REFER TO:
			1400/3 01

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj 
	Ref:	(a)      Form 149 of 7 Jul 01
		(b)	MCTIQQ.32C,ENLPROMMAN

1. Reference (a) is Staff Sergeant,	request for remedial consideration for promotion to gunnery sergeant. His request failed to meet the criteria contained in paragraph 3502 of reference (b) -

2 -	Corrections made by BCNR, per ref (b), consisted of removing fitness report (CH) 960101 to 960202. In accordance with paragraph 3602.4 of ref (b), states, “Due diligence requires that requests for corrective action and remedial consideration be initiated within one year from the date of the notification of nonselection.” SSgt ‘ request to BCNR via DD Form 149 was 7 July 01, thus granting him only one year of remedial consideration. Staff Sergeant as received remedial consideration for the board in w ich he was eligible. It is our opinion that Staff Sergeant Should not be promoted to gunnery sergeant.

							Head, Enlisted Fromotion Section
							Promotion Branch
							By direction of
							the Commandant of the Marine Corps