DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1175-20 Ref: Signature Date 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. 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 26 February 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, and applicable statutes, regulations, and policies. The Board also considered the enclosed 19 April 2018 advisory opinion (AO) and an undated AO, both furnished by the Marine Corps Performance Evaluation Review Board (PERB), as well as your 18 February 2020 rebuttal. The Board carefully considered your request to remove your fitness reports for the reporting periods 16 November 2003 to 14 January 2004 and 26 February 2004 to 4 June 2004. You assert that, while Marine Corps selection boards rely heavily on fitness reports’ relative values and comments to assess performance, these two fitness reports were poorly understood and misinterpreted you as a young sergeant, and that if you had known better, you would have taken action much earlier to have them corrected or removed. You also assert that the two fitness reports impacted your selection to staff sergeant on three promotion selection boards. Fitness report for the reporting period 16 November 2003 to 14 January 2004 The Board noted that your report contained an unacceptable comment for a non-adverse report, and that the Marine Corps’ course of action was to remove the following comment from Section I “MRO requires supervision and in-depth instruction when dealing with situations that are not routine in nature.” The Board also noted that the PERB found that the Section K comments are not adverse and should remain as written. The Board considered your contention that your reporting senior (RS) and reviewing officer (RO) made comments that are adverse in nature and undermine your professional character. The Board also considered your contentions that you did not meet with your RS for an initial counseling to discuss billet descriptions and expectations within the first 30 days or at any time during the evaluation period, and that the lack of an initial counseling had a negative impact on your career. You also assert that, as a junior leader, your leaders failed you by not finding some time to invest in you, and that any counseling program which relies on final evaluations as a tool to force behavioral changes is meritless and unjust. The Board also considered your assertion that your RS intentionally marked 13 attributes in Sections D, E, F, and G in a manner that would ensure the report’s relative value on your master brief sheet (MBS) would be at the bottom of his profile, although there were no incidents or lack of performance that would have indicated that you were not meeting performance standards or that an adverse report would have been issued. Although the PERB redacted an adverse comment from Section I, you contend that the remaining comments are not in accordance with policy, that they meet the definition of unacceptable comments in a non-adverse report, and that they indicate that you had the ability to excel but did not accomplish anything significant during this reporting period, which you claim is substantially misleading. You also assert that, given the short period of observation and limited interaction between you and your RS, you did not receive a fair evaluation. Fitness report for the reporting period 26 February 2004 to 4 June 2004 The Board considered your contention that your RS made a comment that did not provide a solid “word picture” and stated that you were a “capable NCO,” which, you assert, does not cover all traits that describe the “whole Marine” concept. The Board also considered your contention that your RO made remarks that sound more like a counseling, rather than evaluation of performance. The PERB determined that being referred to as “capable” is neither derogatory nor negative in nature, and that, while your RS’s comments are lacking and not reflective of his grade or position, they are within policy and should remain as written. In your rebuttal, you assert that you volunteered to perform duties outside of your normal range of responsibilities to better yourself and broaden your experience as a newly promoted sergeant, and that this duty (sergeant of the guard) required you to learn new knowledge, skills, and abilities. You also assert that you never met your RS for an initial counseling within the first 30 days to discuss your billet duties and expectations, and that your initial counseling was conducted by the guard chief. The Board considered your contention that the duties and expectations of your billet were not communicated or defined, which resulted in a report that had a negative impact on your career, and that the report was used as a counseling tool. The Board also considered your assertion that, in your capacity as a sergeant filling this important billet, you displayed moral courage daily, but your RS marked the attribute “courage” as not observed. The Board considered your contention that the omission of this attribute is not in accordance with policy and is an error that had lasting negative effects. The Board also considered your contention that your RS’s Section I comments are not in sync with his grading. Board Decision The Board determined that, given the PERB’s modification to the report ending 14 January 2014, it is now written in compliance with the policy in effect at the time. The Board substantially concurred with the PERB and concluded that the remaining Section I and Section K comments are not adverse and shall remain as written. The Board noted that your RS may have failed in his responsibility to perform an initial counseling, but determined that the lack of an initial counseling does not invalidate the report, as a formal counseling is not required. The Board also concluded that you failed to meet the burden of proof necessary to establish that the report is not an accurate portrayal of your performance and accomplishments during the reporting period. The Board thus concluded that your report, as modified by the PERB, does not constitute probable material error or injustice warranting removal from your record. With regard to your report ending 4 June 2004, the Board, again, substantially concurred with the AO, noting that the reviewing official comments are neither derogatory nor negative in nature, and while your RS’s comments are lacking and not reflective of his grade or position, they are within policy and shall remain as written. The Board did not find a conflict between your assigned attribute marks and Section I comments, and noted that there is no scale to “match” the attribute markings with Section I comments, nor would it be feasible to provide any scale. The Board also determined that it was your RS’s prerogative to mark your “courage” attribute as “not observed,” and that doing so did not invalidate the report. The Board also noted that the perceived competitiveness of a report’s relative value or comparative assessment mark is not a basis for removing a fitness report. Finally, the Board determined that you failed to provide any evidence that your performance warranted higher marks than those given by your reporting officials. The Board thus concluded that there is no probable material error or injustice warranting removal of the contested report. 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 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, 4/14/2020