DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE  1001
ARLINGTON,  VA  22204-2490

Docket No: 7168-18 
Ref: Signature Date

Dear	:

This 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied.

A three-member panel of the Board, sitting in executive session, considered your application on 8 October 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, as well as the enclosed 23 August 2018 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB). The AO was provided to you on 23 August 2018, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration.

The Board carefully considered your request to remove your fitness report for the reporting period 1 January 2017 to 31 December 2017.  The Board considered your contentions that you did not receive derogatory material during this period, there is no derogatory material in your official military personnel file (OMPF), and the report is being used as a counseling tool in place of traditional counseling methods. You assert that the contested report states that you pled guilty and were convicted of three misdemeanor charges in civil court, when you actually accepted a plea agreement for one misdemeanor and one traffic violation. Moreover, the report was created because of your company commander’s direct involvement in the process, though he was not in your reporting chain.

The Board noted that you were arrested on 15 April 2017 by the  County Sherriff’s Department and cited for fleeing, reckless endangerment, and speeding 100 MPH in a 55 MPH zone.  The Board also noted that during your appearance in civilian court, you pled guilty to evading and speeding 75 MPH in a 55 MPH zone. The Board substantially concurred with the AO’s opinion that the contested report is procedurally correct as written, but contains a correctable administrative error. In this regard, the Board noted that Headquarters, Marine Corp corrected your report by replacing the Addendum Page 1 of 4 Directed Comment and the Section G Directed Comment with the statement, “Civilian District Court conviction on 6 Nov 2017 for evading and speeding.”

Regarding your contention that you did not receive derogatory material during the reporting period, the Board concurred with the AO and determined that in accordance with chapter 4, paragraph 3f(2)(a)2 of the Performance Evaluation System (PES) Manual, your report of conviction by a civilian court (except for minor traffic violations) constitutes derogatory material and thus renders the report adverse.

Regarding your contention that the report was used as a counseling tool, the Board noted that the reporting senior (RS) not only recommended you for promotion, both reporting officials’ comments are complementary. The Board determined that the adverse nature of the report is based upon factual documentation of your civilian conviction and the requirements directed by the PES Manual.  Moreover, the Board noted the email between the company commander and the reporting senior and determined that in his capacity as the company commander, he was within his authority to provide guidance to the RS concerning regulations as it related to your case. The Board thus concluded that there is no probable material error or injustice warranting additional corrective action.

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.

Sincerely,