BJG
Docket No:7196-06
2 March 2007

From:	Chairman, Board for Correction of Naval Records
To:	Secretary of the Navy
		REVIEW OF NAVAL RECORD
	Ref:	(a) Title 10 U.S.C. 1552

End:	(1) DD Form 149 dtd 20 Apr 06 w/encl
(2)	HQMC MMER/PERB memo dtd 8 Aug 06
(3)	HQMC MMOA-4 memo dtd 15 Sep 06
(4)	Memo for record dtd 27 Feb 07
(5)	Subject’s naval record

1.	Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected by removing section K (reviewing officer (RO) marks and comments) from the fitness reports for 9 May 1998 to 1 June 1999 and 1 August 1999 to 29 February 2000 (copies in enclosure (1) at Tabs A and B), completely removing the report for 13 March to 31 July 2001 (copy in enclosure (1) at Tab C), and removing the word “quiet” from the RO comments in the report for 20 July 2002 to 31 May 2003 (copy in enclosure (1) at Tab D) . As reflected in enclosure (2), the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) has directed removing the contested section K’s and the word quiet,” and HQMC has modified the report for 1 August 1999 to 29 February 2000 to show “CAPT” (captain) vice “MAJ” (major) in section A, item i.e (grade). Petitioner further requested a remedial promotion board or removal of his failures of selection by the Fiscal Year (FY) 2006 and 2007 Lieutenant Colonel Selection Boards. After he had applied to this Board, he also failed of selection by the FY 2008 Lieutenant Colonel Selection Board. It is presumed he desires removing that failure as well, so as to be considered by the selection board that next convenes to consider officers of his category for promotion to the grade of lieutenant colonel as an officer who has not failed of selection for promotion to that grade.

2.	The Board, consisting of Ms. Ballinger and Messrs. Bowen and Chapman, reviewed Petitioner’s allegations of error and injustice on 1 March 2007, and pursuant to its regulations, determined that the limited corrective action indicated below should be taken of 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 available under existing law and regulations within the Department of the Navy.

b.	Concerning the contested fitness report for 13 March to 31 July 2001, Petitioner contends it was submitted late (reporting senior (RS) and RO signed it on 28 September 2001 and 2 January 2002, respectively); he was not counseled; contrary to the RS certification, he did not receive a copy when the report was completed (he says he obtained a copy before his departure from Bahrain in July 2002); and he deserved a better report. This report is not adverse in marks or comments. Petitioner provided two supporting statements, from a Marine Corps lieutenant colonel and captain, to the effect the report was late and he performed well during the period in question.

c.	In correspondence at enclosure (2), the HQMC PERB commented to the effect that Petitioner’s application to correct his fitness report record warranted partial relief. They stated they had directed removing the contested section K’s and the word “quiet.” However, they concluded that the report for 13 March to 31 July 2001 should stand.

d.	In correspondence at enclosure (3), the HQMC Officer Counseling and Evaluation Section, Personnel Management Division commented to the effect that Petitioner’s failures of selection by the FY 2006 and 2007 Lieutenant Colonel Selection Boards should be removed on account of the PERB action.

e.	When Petitioner failed of selection by the FY 2008 Lieutenant Colonel Selection Board, his fitness report record had been corrected (enclosure (4) verifies this), but he was in a status of having failed of selection for promotion.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief, specifically, removal of his failures of selection to lieutenant colonel.

The Board concurs with enclosure (3) in finding Petitioner’s failures of selection by the FY 2006 and 2007 Lieutenant Colonel Selection Boards should be removed. The Board finds his failure of selection by the FY 2008 Lieutenant Colonel Selection Board should be removed as well, since he was considered by that promotion board as an officer who had failed of selection. The Board finds Petitioner should not have a remedial promotion board, as his consideration by a regular board, with a corrected fitness report record and status as not having failed of selection, will provide him adequate relief.

The Board substantially concurs with enclosure (2) in finding the fitness report for 13 March to 31 July 2001 should stand. If Petitioner is correct that he did not receive a copy of the report when it was completed, the Board finds this would not be a material error warranting relief, as the report is not adverse and, therefore, Petitioner had no right to make a statement; and he acknowledges that he obtained a copy only a few months after the RO’s action on the report. The supporting statements do not persuade the Board Petitioner deserved a more favorable evaluation.

In view of the above, the Board directs the following limited corrective action.

RECOMMENDAT ION:

a.	That Petitioner’s naval record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to lieutenant colonel as an officer who has not failed of selection for promotion to that grade.

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.

c.	That any material directed to be removed from Petitioner’s naval record be returned to the 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. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) 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.
	
ROBERT D. ZSALMAN	JONATHAN S. RUSKIN
Recorder	Acting Recorder

5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.

      W. DEAN P EIFFER
Executive Director