DEPARTMENT OF THE NAVY
		               BOARD FOR CORRECTION OF NAVAL RECORDS
		                              2 NAVY ANNEX
	                                                                          	WASHINGTON DC 2O37O-5100

	BJG
Docket No:9715-06
1 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 30 November 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 26 October 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 should have stated your weight as 155 pounds, rather than 172 pounds. The report’s late submission is not condoned, however, the Board was unable to find this invalidated the report as it could not find your ability to respond effectively was impaired. Finally,
your allegation that the reporting senior was under investigation for misconduct during a period that included the reporting period in question did not persuade the Board that he could not evaluate your performance fairly and accurately.

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 PFEIFI
Executive Director

Enclosure

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

				IN REPLY REFER TO:
											1610
											MMER/PERB
											OCT 26 2005

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)	DD Form 149 of 13 Jun 06
		(b)	MCO P1610.7E w/Ch 1-9

1.	Per MOO 1610.11C, the Performance Evaluation Review Board, with three members present, met on 18 October 2006 to consider
petition contained in reference (a) Removal of the fitness report covering the period 20040511 to 20040802 (FD) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends that the report is based on hearsay and he only received it after inquiring about its status with the reporting senior. The petitioner further implies he was not afforded due process to answer allegations.

3.	In its proceedings, the Board concluded that the report covering the period 20040511 to 20040802 (FD) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:

a.	The Board found that the adversity of the report was uncovered by a command inquiry when the petitioner did not return to Columbia from leave in CONTJS and that the adversity of the report focuses on the petitioner’s poor leadership and decision making.

b.	The Board also found that in the petitioner’s rebuttal to the fitness report, he admits that the reported incidents occurred but he does not agree with the degree of adversity the reporting officials attributed to those incidents. The petitioner was correct in saying that he was not able to directly confront the reporting senior on the adversity because his parent command (4t~~ MEB) chose not to send him back to Columbia.

However, he was afforded the opportunity to acknowledge the reporting senior’s evaluation and submitted a rebuttal. The Board concluded that the reviewing officer thoroughly answered the petitioner’s contentions and adjudicated the differences. Further, the report was properly third officer sighted.

c.	Additionally, the Board found that the petitioner’s attached advocacy letter ~ with no authority regarding the validity of the fitness report. ~
t~1oes not establish how he was more privy to the petitioner’s accountability and responsibilities than the~ (the reporting senior) and the Commander of USMILGP Columbia (the reviewing officer). The advocacy letter the petitioner provides fro~~~ ~ clearly admits that he was not stationed with the petitioner at the time of the incident.

4.	The Board’s opinion, based on deliberation and secret ballot
vote, is that the contested fitness report, covering the period
20 405 to 20040802 (FD), should remain a part official military record.

5. The case is forwarded for final action.