Docket No: 3491-19 
Ref: Signature Date 


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 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. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 28 April 2020.  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 5 March 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 

The Board carefully considered your request to remove or modify your annual (AN) fitness report for the reporting period 6 July 2012 to 31 December 2012 and to remove or modify your annual (TR) fitness report for the reporting period 31 December 2012 to 20 May 2013.  The Board also considered your request for remedial promotion to gunnery sergeant/E-7.  The Board considered your contentions that the reports have substantive inaccuracies that violate the integrity of the performance evaluation system, including procedural and administrative errors, inflated and inaccurate or gamed fitness reports, and inaccurate reporting. You argue that your request to remove or modify the reports is justified, considering the [reporting officials’] wrong doings within the two contested reports, and the potential adverse effect they will have on your future career. 

The Board, however, substantially concurred with the PERB and determined that, while spelling and grammatical errors are unprofessional, they do not invalidate a report, and that using an abbreviated and non-abbreviated grade within the same report is a common occurrence and does not necessarily imply a lack of quality control, or that your reviewing officer (RO) did not read your report, or that he “graded blindly.”  Additionally, the Board noted that the perceived competitiveness of a report’s relative value or comparative assessment mark is not a basis for removing or modifying the reports. 

The Board also concurred with the PERB that there is no Performance Evaluation System (PES) Manual guidance stipulating that reporting officials’ comments “coincide,” and noted that reporting officials have respective and differentiated responsibilities related to evaluation comments that invite non-coincidental comments, as long as they do not otherwise obscure the report.  Additionally, there is no existing PES Manual guidance requiring Section I comments to coincide with relative values. 

With regard to your contention that your reporting senior (RS) used gaming in processing the reports, and that the reports were written to manipulate his profile, the Board noted that your AN report constituted the first report written by your RS on grade, so he had yet to even establish a profile.  The Board, again, substantially concurred with the PERB that you provided no evidence to support this contention. With regard to your contention that the reports contain “velvet daggers,” the Board concurred with the PERB that no comments in either report are deemed as velvet daggers, rather they indicated that you were making adequate progress, but still needed some improvement.  Specifically, the comment “[you have] done well in the changeover” seems to clearly infer that you did well during a changeover (as opposed to not doing well), and commenting on professional military education (PME) and recommending attendance at a resident course are standard performance evaluation comments. 

The Board also concurred with the AO that you failed to provide any evidence, or anything beyond your statement, that your performance and conduct warranted more than was recorded on your fitness reports.  The PERB determined, and the Board concurred, that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting removal or modification of your contested AN and TR fitness reports.  The Board thus concluded that, absent any changes to the contested fitness reports, remedial consideration to gunnery sergeant is not warranted. 

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. 



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