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

										BJG
										Docket No: 5397-04
	 5 August 2004

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 that the contested fitness report for 1 October 2002 to 21 February 2003 be modified by deleting the mark from item 6.c (  disciplinary action”)

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 5 August 2004. 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 Performance Evaluation Review Board (PERB), dated 25 June 2004, a copy of which is 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 report of the PERB. The Board specifically found that item 3.a (‘occasion”) of the contested fitness report was correctly marked ‘DC” (directed by CMC) and that item 5.a (‘adverse”) was correctly marked to reflect the adverse marks and comments. 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,

Enclosure

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
	QUANTICO, VIRGINIA 22134-Si 03	
		IN REPLY REFER TO:

	1610
	MMER/ PERB
JUN 25 2004

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

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF
		GUNNERY SERGEANT
	
	Ref:	(a) GySgt	s DD Form 149 of 4 Mar 04
(b)	MCO P16l0.7E w/Ch 1-6

1. Per MCO lElO.llC, the Performance Evaluation Review Board, with three members present, met on 23 June 2004 to consider Gunnery Sergeant petition contained in reference (a) Removal of the fitness report for the period 20021001 to 20030221 (DC) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2. The petitioner contends the report is procedurally and substantively inaccurate. Specifically, he believes that Section A, Items 3a, 5a, and 6c are in error and argues that the errors are further exacerbated by the ratings in Section F, Items 1 and 3, and Section G, Item 3. It is the petitioner’s position that since he was not the subject of any disciplinary action, Item 6c in Section A should not have been marked, and that there was then no justification for submitting a “DC” fitness report. To support his case, the petitioner furnishes letters from both the Reporting Senior of record (who asks that certain marks be changed) and his current Commanding Officer.

3.	In its proceedings, the PERB concluded that, with one minor exception, the report is both administratively correct and procedurally complete as written and filed. The following is offered as relevant:

a.	The Reporting Senior was well within his rightful prerogative in submitting the “DC” report to document a significant adverse action (i.e., the petitioner’s relationship with a subordinate instructor under his direct control) - That decision was/is in full compliance with the provisions of subparagraph 3004.2 of reference (b) and constitutes neither an error nor an injustice. Of note, subparagraph 3004.2c outlines
	~I	~
	- -, ‘I

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATIQ

the specific instances when a Reporting Senior “must” submit a “DC” report; reporting other adverse actions via the “DC” report falls within the discretion of the reporting official.

b.	In the situation at hand, Captai ade a conscious decision to submit a “DC” report, and the incontrovertible factual matter recorded therein has not changed. The three marks of “A” that the petitioner and Captain  row argue as being “inaccurate” (Section F, Items 1 and 3, and Section G, Item 3) were fully justified. The only issue remaining is the inaccurate mark in Section A, Item 6c. The Board agrees with the petitioner that that block should not have been marked. They do not, however, conclude that removal of the report is either necessary or warranted. Instead, action has been directed to have the mark removed and the petitioner’s Master Brief Sheet amended accordingly.

4.	The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness report, as modified, should remain a part of Gunnery Sergeant - official military record. The limited corrective action identified in subparagraph 3b is considered sufficient.

5.	The case is to warded 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

2