JSR
Docket No. 08913-07
20 November 2007

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 20 November 2007. 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 (HQMC) Performance Evaluation Review Board (PERB), dated 19 September 2007, 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 PEP3. Specifically concerning the contested fitness report for 20 to 25 July 2005, the Board noted that not only was your court-martial sentence reduced, but also the charge concerning Article 134, Uniform Code of Military Justice was dropped. You may submit a revised statement, reflecting that you were not found guilty of violating Article 134 and that your reduction in grade was set aside, to HQMC (NSB), via the reviewing and third sighting officers, for file in your record with the report at issue. 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. 							W. DEAN PFEIFFER
							Executive Director

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
					3280 RUSSELL ROAD
                                                                  QUANTICO, VA 221 34-5103	

                                                                                                                         IN REPLY REFER TO
                               1610	
									  MMER/PERB
                                             SEP 19 2007

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

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

	(a)-Form 149 of 9 Mar 07
(b)	MCO P1610.7E w/Ch 1-9

1.	Per MCO 1610.1ic, the Performance Eva1uatioy Review Board,
with three members present, met on 12 September 2007 to consider contained in reference 
Removal of the fitness reports for the periods 20040828 to 20041231 (AN) and 20050720 to 20050725 (DC) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends the reports should be removed because they are inaccurate. He believes that the report covering the period 20040828 to 20041231 (AN) should be removed because the DUI charge detailed in the report was dismissed. He also believes that the report covering the period 20050720 to 20050725 (DC) should be removed because part of his sentence was set aside for his Summary Court-Martial conviction.

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

a.	Regarding the fitness report covering the period 20040828 to 20041231 (AN) and per paragraph 03.6c(2) (d) of reference (b), it is immaterial whether as a result. thereof, probation or some type of diversionary program is imposed and charges are later dismissed or expunged from civil courts’ records. In this case, the Board found that the petitioner does not provide any substantive evidence to show that the action taken by the civilian court was not the result of him satisfactorily completing the requirements of a diversionary program. He provides a dismissal order approximately two years after he pled no contest to the DUI charge.

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

b.	Concerning the fitness report covering the period 20050720 to 20050725 (DC) and per paragraph 3004.2 of reference (b), commands are directed to submit “DC” reports when a Marine is convicted of any offense by a summary court-martial In this case, the Board found that the petitioner only provides evidence to show that his sentence was modified as his reduction in grade was set aside. The original conviction still stands and remains on the petitioner’s permanent record.

4.	The Board’s opinion, based on deliberation and secret ballot. is the member contested fitness reports should remain a part official military record.

5.	The case is forwarded for final ac ion.

Colonel , U.S. Marine Corps
Chairperson, Performance
Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps