DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5 100

BJG
Docket No:10179-06
18 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.

You requested removing the “not observed” fitness report for 10 September to 1 December 2005. It is noted that the Commandant of the Marine Corps (CMC) has directed removing the observed report for 10 September to 2 December 2005, which you wanted to be left in the record.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 14 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 14 November 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 PERE. Accordingly, your application for relief other than that effected by CMC has been denied. The names and votes of the members of the panel will be furnished upon request.

Although the Board voted not to restore the observed report for 10 September to 2 December 2005 to your record, you may submit it to future selection boards.

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,

ROBERT D. ZSALMAN
Acting Executive Director

Enclosure

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

			IN RELPY REFER TO:
				MMER/PERB
 										NOV 14 2006

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

Subj:	MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

(a) DD Form 149 of 2 May 06
	1-9

1.	Per NCO l610.llC, the Performance Evaluation Review Board, with three members resent, met on 1 November 2006 to consider
petition contained in reference (a). Removal of the fitness report for the period 20050910 to 20051201 (CH) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends the report should be removed because his reporting senior utilized a blank MRO worksheet to prepare the report. He provides advocacy letters from the reporting senior and the reviewing officer supporting his request.

3.	In its proceedings, the PERB concluded that the report covering the period 20050910 to 20051201 (CH) is administratively correct and procedurally complete as written and filed. The following is offered as relevant:

a.	After thorough review of the petitioner’s record, the Board found that there are overlapping reports in the Official Military Personnel File (OMPF). The fitness report covering the period 20050910 to 20051201 (CH) was received and processed on or about 17 January 2006. The second fitness report covering the period 20050910 to 20051202 (CH) was received and processed on or about 23 May 2006. Per the provisions of NM Policy Memorandum 004-04, “When two or more reports have similar dates and the same reporting senior, the fitness report with the earliest dated reporting senior’s signature is considered the valid report. Since the earliest dated report was submitted in a more timely manner, it is considered the more accurate and valid report.” Therefore, the Board directed that the report covering  the period 20050910 to 20051202 (CH) be expunged from the petitioner’s OMPF.

b.	When reviewing the reporting senior’s and reviewing officer’s justification for expunging the first report, 20050910 to 20051201 (CH), vice expunging the second report, 20050910 to 20051202 (CH), the Board found that neither the reporting senior nor the reviewing officer provide any further amplification as to why the observed report covering the period 20050910 to 20051202 (CH) was warranted four months after the submission of a properly completed “not observed” report when they clearly indicate on the ~witness report covering the period 20050910 to 20051201 (CH) they had sufficient observation time. Therefore, the Board did not think it would be appropriate to expunge the first report.

c.	Concerning the worksheet, the Board concluded that the reporting senior used the worksheet to complete the report. However, reporting senior’s have the prerogative to deviate from the MRO’s worksheet when completing the report.

d.	The Board concluded that it is clear from the petitioner’s two letters that the he dictated to the reporting officials his evaluation; since their input is verbatim from the letters. The reporting officials offer no justification or rationale in their own words.

4.	The Board’s opinion, based on deliberation and secret ballot
vote, is that the contested fitness report covering the period
20050910 to 20051201 (CH) should remain a part official military record.

5.	The case is forwarded for final action.

Chairperson, Performance
Evaluation Review Board
	 Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps