DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4363-18 Ref: Signature Date Dear This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. A three-member panel of the Board, sitting in executive session, considered your application on 30 July 2019. The names and votes of the members of the panel will be furnished upon request. 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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. The Board also considered the enclosed 16 May 2018 Headquarters, Marine Corps (MMRP-13) advisory opinion (AO), and your 18 June 2018 rebuttal thereto. The Board carefully considered your request to remove the fitness report (FITREP) for the reporting period 14 June 2014 to 31 May 2015. The Board considered your contentions that the Reporting Senior (RS) Section D through H markings are unjustly low, are inconsistent with the Section I comments, and were deliberately assigned to unjustly damage your career – along with four additional officers evaluated by the same RS in the same reporting period – as a form of “gaming” the reports and group reprisal for what you refer to as “anonymous protected communications,” which you claimed the RS falsely perceived were authored or suborned by one or more of his squadron majors, against the character of the RS and the climate of his command. You argued that the RS fostered a toxic command climate and made unwise decisions. You also contend that the RS did not provide initial, mid-term, or at-processing FITREP counseling, and that your application with enclosures provided details and supporting documentation to these assertions. The Headquarters, Marine Corps Performance Evaluation Review Board (PERB), having cognizance over your request to remove (originally submitted as a request to modify) the contested FITREP, determined that it is administratively and procedurally correct as written and filed, and recommended that the FITREP remain, as is, in your official military personnel file (OMPF). The PERB specifically determined that there is no scale to “match” the attribute markings with the section I comments, nor is such a scale feasible. Further, while you provided advocacy letters from some of your peers attesting to the command climate, they do not provide the nexus between the RS’s perception of you having made the anonymous protected communications and the attribute markings you received. The Board disregarded the PERB’s comment “[t]o contend on the one hand that the report is the result of reprisal but then request that only the marks be removed, retaining the Section C (Billet Accomplishments) and Section I comments by the RS, is disingenuous and erodes the sincerity of the request,” noting that prior to the Board receiving your petition, you modified your petition and instead requested the FITREP be removed from your OMPF. In your rebuttal to the AO, you further contend that the RS committed acts in violation of whistleblower protection statutes and regulations, and that the RS engaged in behavior that ranged from hazardous and abusive, to bizarre. You explained that any time something went even slightly awry, you were subjected to inappropriate questioning, counseling, and/or reprisal. You also contend that the nexus between the command climate and your perceived involvement in the “anymouse” complaint cannot be ignored, and is an example of the RS’s inability to fairly and objectively evaluate his subordinates. You submitted as evidence additional documentation that your former RS of the contested FITREP was relieved at his next command, and his relief at that command validates your statements. The Board substantially concurred with the AO and concluded that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting removal of the FITREP. The Board noted that you furnished no evidence substantiating your allegation of reprisal, nor did your evidence substantiate a nexus between the command climate and your perceived low marks on the FITREP. The Board thoroughly reviewed your 23 October 2017 statement, and acknowledged what appeared to be a contentious working relationship between you, the and your RS (the Commanding Officer). However, the Board concluded that you did not meet the burden of proof necessary to support your contention that Section D through H markings on the contested FITREP are unjustly low and were deliberately assigned to damage your career. The Board found no evidence, and you provided none, that the report is a form of reprisal for anonymous protected communications. Regarding your contention that the RS did not provide initial, mid- term, or at-processing FITREP counseling, the Board noted that counselings can take many forms. Base on your 23 October 2017 statement to the PERB describing frequent interaction between you and the RS, the Board was not convinced that the RS never discussed your duties and his expectations of you at any time during the 12-month reporting period. With regard to your evidence that the contested FITREP’s RS transferred and was later relieved at his new command, the Board did not find the evidence substantiated a nexus between his evaluation of your performance and accomplishments during the period of 14 June 2014 to 31 May 2015, and his relief at a different command in June 2018. 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 the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or 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.