DEPARTMENT OF THE NAVY
BOARD FOR C0RRECT~ON OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51OO

BJG
                                               Docket No: 8392-06
16 October 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.

You requested removing the fitness reports for 2 July 2002 to 4 April 2003 and 5 April to 29 August 2003.

It is noted that the Commandant of the Marine Corps (CMC) has directed modifying the contested fitness report for 2 July 2002 to 4 April 2003 by removing, from the reporting senior’s comments in section I, “- Report late due to administrative oversight by MRO [Marine reported on] .“

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 13 October 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 for 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 PERD.

The Board found that the fitness reports at enclosures (1) and (2) to your application both are merely drafts that were superseded by the respective reports of record. The Board noted that the report of record for 2 July 2002 to 4 April 2003 marked you better than enclosure (1) in several areas, and that it assigned you only one mark (section F.2 (“Developing Subordinates”) below “C” (fifth best of seven possible marks) The Board found no adversity in the section I language of concern to you (in the report for 2 July 2002 to
4 April 2003: “Qualified for promotion”; in the report for
5 April to 29 August 2003: “he prefers interaction with subordinates through his senior SNCO’s [staff noncommissioned officers] and officers” and “coped adequately”)

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

Enclosure

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103

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
	
	__
	Ref	(a)
		(b)	MCO Pl6l0.7w/Ch 1-8

1.	Per MCO 16l0.11C, the Performance Evaluation Review Board, with three members present, met on 30 August 2006 to consider ________ petition contained in reference (a) . Removal of his reports for the periods 20020702 to 20030404 (CH) and 20030405 to 20030829 (TR) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends the reports should be expunged because reporting officials failed to follow proper reporting procedures, failed to counsel him, and that the reports are administratively inaccurate.

3.	In its proceedings, the PERB concluded that the report covering the period 20020702 to 20030404 (CH) to be procedurally complete, but administratively incorrect. The Board also found the report covering the period 20030405 to 20030829 (TR) to be procedurally complete and administratively correct. The following is offered as relevant:

a.	In regard to the report covering the period 20020702 to 20030404 (CH), the Board found the comment concerning the report being late due to an administrative oversight by the MRO to be inappropriate and not meeting the spirit and intent of reference (b). Paragraph 2004.3b of reference (b) charges reviewing officers with the responsibility of ensuring the accuracy and timely submission of fitness reports, not MRO’s. Therefore, the Board directed that the sentence, “Report late due to administrative oversight by MRO”, be deleted from section “I” of
		the report.

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) 

b.	Concerning the reports being late, the Board agreed the late submittal of fitness reports do not meet the spirit and intent of paragraph 8010 of reference (b). However, late submittals of reports do not invalidate them. Therefore, the Board concluded that it would be inappropriate to expunge reports from the official record simply because they are late.

c.	The petitioner also contends that someone else, other than the reporting senior, drafted the report covering the period 20020702 to 20030404 (CH) . He also contends that the reporting senior did not observe his performance during the reporting period. The Board concluded it does not matter whether or not the reporting senior physically wrote the report. The only thing that really matters is who signed Block J1 of the report. The Board found that Block J1 of the report was certified with the reporting senior’s signature, indicating that he attests to the accuracy and validity of the report written. The petitioner also contends that the reporting senior did not observe his performance. In this case, the original reporting senior was relieved for cause, and the reviewing officer assumed the reporting senior’s reporting responsibilities in accordance with reference (b) . Paragraph 20l0.6a of reference (b) authorizes Commanding Generals a one-time modification to the reporting chain for special situations. Since the reporting senior for the report happens to be the CG, it is implied that the report’s reporting senior was authorized to sign block J1. Upon further review of reference (b), the Board also concluded that there are no hard guidelines as to what constitutes an adequate period of observation. Therefore, the Board concluded the reporting senior met the spirit and intent of reference (b) when he submitted an observed report on the petitioner.

d.	In regard to the report covering the period 20030405 to 20030829 (TR), the petitioner also expressed concern that the report that was shown to him by the reporting senior is not the report that was submitted into the official records. He contends the report is adverse in nature, and he should have been counseled by the reporting senior and afforded the opportunity to submit a rebuttal. After reviewing the draft report submitted by the petitioner, the Board concluded that the report is just that a draft, and the reporting senior had the prerogative to make adjustments prior to its submittal. Since the report that was

2

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

submitted in to the official record is not adverse, there is no justification nor is there a requirement for the petitioner to provide a rebuttal statement.

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

5. The case is forwarded for final action.

I,