DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 639-18 This is in reference to your application for reconsideration received 23 January 2018. You previously petitioned the Board and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Secretary of Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Your current request has been carefully examined by a three-member panel of the Board for Correction of Naval Records on 1 February 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, and applicable statutes, regulations, and policies. Additionally, the Board considered the enclosed advisory opinion (AO) dated 23 August 2005, previously furnished by the Headquarters, Marine Corps Performance Evaluation Review Board (PERB). Your original application was considered and denied by the Board on 28 September 2005. The Board concluded then that the evidence presented was not sufficient to demonstrate the existence of probable material error or injustice warranting relief, and that you did not show how the late submission of the contested fitness report (FITREP) impaired your ability to respond effectively. In your current application, you request the removal of your adverse fitness report (FITREP) for the reporting period 1 December 2001 to 17 January 2002, and removal of all failures of selection you allege resulted from the FITREP. You present as new evidence your assertion that you have been passed for promotion as a result of the contested FITREP, and that the alleged errors and injustices were only made known to you and discovered through a conversation with your career counselor in May 2017. You contend that a number of duties were not performed by the Third Officer Sighter (3OS). Specifically, you contend that (1) the 3OS did not take action to resolve the factual disagreements between your Reviewing Officer (RO) and you; (2) your RO did not respond to new information in your rebuttal, and the 3OS did not take action to determine the validity of the new information; (3) the 3OS did not indicate any action taken or factfinding results; and (4) the 3OS did not complete the report until over two years after the end of the reporting period. You also contend that it is unjust and detrimental to your career for the FITREP to remain in your record, and that its presence in your record undermines the integrity of the FITREP system. Further, you contend that it has caused irreparable damage to your prospects for promotion, retention, command, and duty assignments. The Board noted that the contested FITREP was in your official military personnel file (OMPF) when you failed selection by the Fiscal Year (FY) 2009 USMCR Major Promotion Selection Board. Your eligibility for consideration by the FY 2010 and FY 2011 USMCR Major Promotion Selection Boards was removed due to your placement on the Inactive Status List, and then you were selected and promoted by the FY 2012 USMCR Major Promotion Selection Board. Your record reflects that you also failed selection by the FY 2018 and FY 2019 USMCR Lieutenant Colonel Promotion Selection Boards. The Board substantially agreed with the PERB AO of 23 August 2005, and determined that instead of submitting new matters, you have merely re-alleged your prior assertions and contentions. With regard to your contention that a number of duties were not performed by the 3OS, the Board determined that the only shortcoming on the part of the 30S was that he did not address one item that relates to you attending an anger management class. However, the Board determined that the issue is minor, and the underlying adversity of the report revolves around the your ability to lead. Additionally, the Board determined that the RO did in fact address the differences in this area between the RS and your statements. Therefore, the Board concluded that the lack of 3OS comments is minor, and removal of the contested report based on lack of the 3OS comment is not warranted. With regard to your assertion that the contested FITREP caused irreparable damage and injury to your efforts for promotion, retention, command, and duty assignments, the Board noted that you were promoted to major with the contested FITREP in your OMPF. Although you were passed over for promotion to lieutenant colonel, the Board determined that you did not satisfactorily meet the burden of proof required to demonstrate that the contested FITREP is in error or unjust, or that it is not a fair and accurate assessment of your performance during the reporting period. 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. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken again. You are entitled to have the Board reconsider its decision upon the submission of new matters. New matters are those not previously presented to or considered by the Board. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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,