5L.
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON 0020370-5100

                                 BJG
                                                  Docket No: 4405-06
                                                  8 December 2006

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 7 December 2006. 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 19 May 2006, 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 was unable to find the contested fitness report was used as a counseling tool. The Board found section C adequately listed your billet accomplishments and explained your accomplishment of billet responsibilities. The Board found the reporting senior’s failure to use, in his section I comments, one of the two alternative prescribed statements concerning his recommendation against your promotion was not a material error warranting corrective action. The Board was unable to find the reviewing officer did not adequately scrutinize section I. Finally, the supporting statement you submitted from the maintenance chief did not persuade the Board that the report at issue was erroneous or unjust in indicating you were responsible for a failure of supervision.

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,

W. DEAN PFEIFFER

								Executive Director

Enclosure

		  DEPARTMENT OF THE NAVY
                                     HEADQUARTERS UNITED STATES MARINE CORPS
	QUANTICO, VIRGINIA 22134-51O3	

							MMER/PERB

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

(a) Form 149 of 26 Jan 06
(b)	MCO P1610.7E w/Ch 1-8

1.	Per MCO 16l0.11C, the Performance Evaluation Review Board, with three members present, met onj7 May 2006 to consider contained in reference (a) Removal of the fitness report for the period 20030801 to 20031021 (TD) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends that the report is unjust and should be removed because the reporting senior did not have significant observation of his performance during the reporting period. He also believes the reporting senior used the report as a counseling tool and based the adversity solely on his failure to complete hikes.

3.	In its proceedings, the PERB concluded that the report is administratively correct and procedurally complete with one minor error, the reporting senior made an adverse comment in section “C” of the report. The following is offered as relevant:

a.	Paragraph 4005.ld of reference (b), advises reporting seniors when preparing section “C” of reports to “. . . avoid all reference to personal qualities or potential impact of the MRO’s contributions.” Section D through G provides reporting seniors an opportunity f or assessment. The Board concluded that the first bullet in section “C” of the report, concerning the petitioner’s inability to keep pace on conditioning hikes, should not have been mentioned in the section of the report. However, the first bullet in section “C” does not invalidate the report because there are several related comments throughout the report. Finally, the Board concluded the comment should remain a part of the report since the petitioner acknowledged the comment and offered a rebuttal to it.

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERE) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

b.	Per paragraph 3005.3 of reference (b), reporting officials may submit observed reports for periods of 89 days or less if in their judgment, they possess sufficient observation and the basis of the observation results from meaningful personal contact. Therefore, the Board concluded the reporting senior was within guidelines to submit a report on the petitioner. In this case, the Board found that the petitioner does not provide any substantive evidence to show the reporting senior lacked meaningful observation of his performance to warrant an observed report. The Board found that the reviewing officer concurred and addressed the allegation of insufficient observation by stating the reporting senior observed the petitioner during post deployment maintenance operations and the conditioning hikes.

c.	Per paragraph 5001.1 of reference (b), reporting officials must document and report unsatisfactory performance, lack of potential, or unacceptable professional character. The Board concluded the adverse nature centered on the petitioner’s failure to complete three conditioning hikes and his inability to care for his subordinates by ensuring they were properly hydrated as a result of his inability to complete the hikes. Therefore, they found that it was appropriate for the reporting senior to document the petitioner’s unsatisfactory performance on the report.

4. The Board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness reports should remain a part military record.

5. The case is forwarded for final action.