Docket No: 10930-18 
Ref: Signature Date 
 
From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy   
 
Subj: REVIEW OF NAVAL RECORD OF    XXX XX  USMC 
 
Ref:  (a) 10 U.S.C. § 1552 
      (b) MCO P1610.7E W/CH 1-9 
      (c) MCO P1610.7F W/CH 1  
 
Encl:   (1) DD Form 149 
        (2) Fitness Report for the reporting period 13 Dec 03 to 6 Feb 04 
        (3) Fitness Report for the reporting period 4 Dec 10 to 28 Feb 11 
        (4) HQMC memo 1610 MMRP-13/PERB of 20 Nov 18 (wrt encl (2)) 
        (5) HQMC memo 1610 MMRP-13/PERB of 20 Nov 18 (wrt encl (3)) 
 
1.  Pursuant to reference (a), Petitioner, a commissioned officer in the Marine Corps, filed enclosure (1) with this Board, requesting that his record be corrected by removing the fitness reports at enclosures (2) and (3), and by removing his failures of selection incurred by the fiscal year (FY) 2019 and FY2020 USMC Lieutenant Colonel Promotion Selection Boards. 
 
2.  The Board, consisting of  reviewed Petitioner’s allegations of error and injustice on 16 April 2019 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies. 
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: 
 
     a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. 
 
      b.  Petitioner was eligible for and failed selection by the FY2019 and FY2020 USMC Lieutenant Colonel Promotion Selection Boards.  Petitioner contended that his fitness reports at enclosures (2) and (3), issued and entered into his official military personnel file (OMPF) prior to the FY19 Promotion Selection Board, are in error.  Specifically, Petitioner contends that neither report meets the requirements for an observed report because the observation periods are under 90 days, and the Reporting Seniors (RS) did not document that they were invoking an exception to policy when they submitted their respective observed reports.  Regarding the fitness report ending 6 February 2004, Petitioner claims that the RS’s comments include adverse language in violation of Marine Corps’ policy.  Regarding the fitness report ending 28 February 2011, Petitioner claims the period does not qualify as “meaningful personal contact that is not normally obtainable in a standard work setting.”  Petitioner also asserts that the errors made him less competitive and may have contributed to his failures to select. 
 
     c.  Per enclosure (4), an advisory opinion (AO) furnished by Headquarters, Marine Corps (HQMC), the fitness report ending 6 February 2004, was procedurally correct as written and filed, but contained administrative errors.  The Marine Corps’ course of action was to mark Section A, Item 5b (Not Observed), remove the “mark from Section A, Item 7a, mark Section A, Item 7c ‘N/A,’ remove all Section C, Billet Accomplishments narrative, remove pages 2 of 5 through 4 of 5, remove Section I in its entirety, and replace with ‘This is a not observed fitness report due to insufficient observation.’”  The AO recommended that this fitness report, as modified by HQMC, remain in Petitioner’s OMPF. 
 
     d.  Per enclosure (5), an AO furnished by HQMC, the fitness report ending 28 February 2011, was procedurally correct as written and filed, but also contained administrative errors.  As with enclosure (4), the Marine Corps’ course of action was to “mark Section A, Item 5b (Not Observed), remove the mark from Section A, Item 7a, mark Section A, Item 7c ‘N/A,’ remove all Section C, Billet Accomplishments narrative, remove pages 2 of 5 through 4 of 5, remove Section I in its entirety, and replace with ‘This is a not observed fitness report due to insufficient observation.’”  The AO recommended that this fitness report, as modified by HQMC, also remain in Petitioner’s OMPF. 
 
     e.  In response to the AOs, Petitioner reiterates his desire to have both fitness reports removed from his OMPF.  Specifically, despite modifications made by HQMC, the Reviewing Officer’s (RO’s) evaluative marks were not removed.  Further, the Performance Evaluation System Order allows the RO to leave evaluation marks on a “Not Observed” report, but it would reason that they be substantiated with amplifying comments, and should meet the requirement of “meaningful personal contact that is not normally obtainable in a standard work setting.”  Petitioner contends that both reports, now marked as “Not Observed,” are inconsistent between the RS and RO, and are not justified with any amplifying information.  He contends that the most efficient corrective action would be to remove the reports. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  In this regard, the Board noted the modifications made to both reports by HQMC.  However, the RO evaluations were not modified.  The Board acknowledged that the reports are not in error, but agreed with the Petitioner’s rationale that both reports, now marked as “Not Observed,” are inconsistent between the RS and RO, and are not justified with any amplifying information.  The Board concluded that both reports should be removed from Petitioner’s OMPF. 
 
Regarding Petitioner’s request to remove his failures of selection, the Board noted the substantial modifications made to the fitness reports by HQMC, and the Board’s decision to remove the fitness reports entirely from Petitioner’s OMPF.  The Board determined that the Promotion Selection Boards were not presented with an accurate representation of Petitioner’s performance due to errors in his fitness reports at enclosures (2) and (3).  The Board concluded that, due to the removal of Petitioner’s fitness reports, his FY2019 and FY2020 failures of selection should also be removed from his record. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by removing his fitness report for the reporting period 13 December 2003 to 6 February 2004. 
 
Petitioner’s naval record be corrected by removing his fitness report for the reporting period 4 December 2010 to 28 February 2011. 
 
Petitioner’s naval record be corrected by removing his failures of selection incurred by the FY2019 and FY2020 USMC Lieutenant Colonel Promotion Selection Boards. 
 
Petitioner’s naval record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to lieutenant colonel as an officer who has not failed of selection for promotion to that grade. 
 
4.  Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)), it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 
 
5.  The foregoing action of the Board is submitted for your review and action. 
 
         
6/28/2019
Executive Director

Reviewed and Approved / Disapproved 
        
Assistant General Counsel (M&RA)