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

					JSR
										Docket No. 09457-07 
										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 Performance Evaluation Review Board (PERB), dated 9 October 2007, a copy of which is attached, and your letter dated 24 October 2007.

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. While the Board recognized that expert testimony had been presented, at the reporting senior’s court-martial, concerning his diagnoses of major depressive disorder with suicidal ideations, a gambling addiction and a sexual addiction, the Board was unable to find he was not mentally competent or in any way unfit to act as your reporting senior when he submitted the contested fitness report. Finally, the Board found no requirement for section I (reporting senior’s “Directed and Additional Comments”) comment on the mark in section A, item 7a, which clearly reflected that you were recommended for promotion. 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 PFEIFFER
							Executive Director

Enclosure

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
					3280 RUSSELL ROAD
                                                                   QUANTICO, VA 221 34.5103	

                                                                                                                             IN REPLY REFER TO:
                                       1610
									    MMER/PERB 
									     DEC 09 2007

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

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

              (a) DD Form 149 of 2 May 07
(b)	MCO P1610.7E w/Ch 1—2

1.	Per MCO 1610.11C, the Performance Evaluation Review Board, three members present, met on 26 September 2007 to consider
petition contained in reference (a) Removal of the fitness report for the period 19991208 to 20000925 (CD) was requested. Reference (b) is the performance evaluation directive governing submission of the report.

2.	The petitioner contends the report should be removed because the reporting senior was later convicted for armed robbery. The petitioner further contends that the reporting senior was suffering from depression during the reporting period which impaired his judgment and subsequent evaluation.

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

a.	Per paragraph 2010.5 of reference (b), states that in special circumstances when the reporting senior becomes physically or mentally incapacitated, or is relieved for cause, the reviewing officer must take over as the reporting senior. In this case, the Board found that the reporting senior was arrested in 2004, 4 years after the report, and later convicted for armed robbery. The Board also found that the reviewing officer signed the report and concurred with the reporting senior’s evaluation. The petitioner fails to provide documentary evidence that shows the reporting senior was relieved by the reviewing officer as a result of his impaired judgment or the reporting senior’s evaluation abilities. Finally, the Board found that the petitioner fails to provide any substantive reason to warrant the

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

report’s removal or factual basis to support his claim that the reporting senior was incapable of providing a fair and unbiased evaluation.

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

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

5.	The case is forwarded for final action.

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