DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
						WASHINGTON DC 20370-5100

							BJG
	Docket No: 10202-06
	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.

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 PERB. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon
request Although the Board voted not to remove the contested fitness report, you may submit the Cumberland County court order of dismissal 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. VIRGINIA 22134-5103

			IN REPLY REFER TO:

										1610
										MMER/PERB 

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

Subj:	MARINE CORPS PERFOR1vIANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICANT THE CASE OF

	    (a) DD Form 149 of 21 Jun 06
(b)	MCO P16l0.7E w/Ch 1-4

1. Per MCO 16l0.llC, the Performance Evaluation Review Board, with three members present, met on 8 November 2006 to consider
	contained in reference (a). Removal of the fitness report for the period 20010401 to 20020331 (AN) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2. The petitioner contends the report should be removed because civilian court ordered dismissal of all charges against him in regards to his DUI case dated 7 December 2001. To support his case, the petitioner provides a court order to dismiss all charges against him after completing an ARD/Expungement program.

3. In its proceedings, the PERB concluded that the report is administratively correct and procedurally complete as written and filed. The following is offered as relevant:

a.	In this case, the Board found that the petitioner does not deny that an alcohol related incident occurred. Per paragraph 4003.6c(2) (d) of reference (b), regarding the reporting of a civilian conviction, “It is immaterial whether as a result thereof, probation is imposed; a sentence is executed; execution of a sentence is deferred, delayed, or suspended; or, by local law, or procedure, charges are dismissed or expunged from civil courts’ records after payment of fine, completion of term in jail or sentencing, or completion of a period of probation. These actions do not change the character of the initial misconduct.” By Cumberland County Court placing the petitioner in a diversion program, they were not denying or

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

exonerating the petitioner’s actions; they were offering to remove the DUI charges from the public record if he kept a clean slate over a defined period.

b.	The Board concluded that the fitness report is an honest and accurate assessment of the petitioner’s overall performance during this reporting period.

4. The Board’s opinion, based on deliberation and secret ballot
vote, is that the contested fitness report, covering the period
20010401 to 20020331 (AN), should remain a part of military record

		5. The case is forwarded for final action.