From:  Chairman, Board for Correction of Naval Records 
To:   Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD OF   
             
 
Ref:  (a) Title 10 U.S.C. § 1552 
     
Encl: (1) DD Form 149 w/attachments  
  (2) Fitness report for the reporting of 1 Jun 16 to 14 Nov 16 
  (3) CMC ltr 1610 MMRP-13/PERB of 27 Feb 20 
  (4) Petitioner ltr of 8 May 20 
    
1.  Pursuant to the provisions of the reference, Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his fitness report for the reporting period 1 June 2016 to 14 November 2016 and if approved, Petitioner request a Special Selection Board (SSB) for promotion to Lieutenant Colonel (LtCol/O-5).  
 
2.  The Board reviewed Petitioner's allegations of error and injustice on 16 March 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies.   
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy, with the exception of his request for a SSB.  The Board made the following findings: 
 
     a.  Petitioner was issued a fitness report for the reporting period 1 June 2016 to 14 November 2016, enclosure (2).   
 
     b.  Petitioner contends that his fitness report was factually incorrect.  Specifically, his section I comment stated that he was in the top 25 percent of majors this reporting senior (RS) had worked with, the relative value for the report is not within the RS’s top 25 percent, the report fell into the bottom third of the RS’s profile.  Petitioner also contends that his RS intentionally marked attributes in a manner that ensure his report was at the bottom third of his profile, while simultaneously writing laudatory comments. 
 
     c.  The advisory opinion (AO), enclosure (3), furnished by the Marine Corps Performance Evaluation Review Board (PERB) determined that Petitioner did not demonstrate probable material error, substantive inaccuracy, or injustice warranting removal of his fitness report.  The PERB modified Petitioner’s record by removing the section I statement, “ is in the top 25% of Majors I have ever worked with.  My Majors profile is skewed with Weapons and Tactics Instructors; otherwise . . . would rank higher.”  The AO noted that there is no supporting evidence to suggest that the RS markings were malicious and/or intended to mislead the Petitioner.  The AO also noted that Petitioner’s RS specifically and transparently referenced his unique profile dynamics and the cumulative relative value of Petitioner’s fitness report is currently in the middle third of his RS’s profile.  The AO concluded that Petitioner’s fitness report is deemed valid as modified. 
 
     d.  In response to the AO, through counsel, Petitioner contends that his entire section I comments are inconsistent with his billet accomplishment and grades.  Petitioner argued that the PERB chose to alter his fitness report in a way that removed the only positive comment in the entire report.  Petitioner claims that, if not for the RS skewing his profile and giving a low relative value, he would have been selected for promotion.   
 
CONCLUSION 
  
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial corrective action.  In this regard, the Board noted that the PERB partially granted Petitioner’s request and approved a modification to Petitioner’s fitness report by removing the statement, “ is in the top 25% of Majors I have ever worked with.  My Majors profile is skewed with Weapons and Tactics Instructors; otherwise . . . would rank higher.”  The Board also noted Petitioner’s contention that the PERB’s corrective action removed the only positive comment in his fitness report.  The Board opined that the PERB’s corrective action was intended to remove the conflict between the RS’s statement and the reports relative value. However, the Board determined that the PERB’s removal of the statement, “ is in the top 25% of Majors I have ever worked with” had the unintended consequence of removing a favorable comment that the RS deemed important to provide a more complete and detailed evaluation of Petitioner’s professional character.  The Board thus recommends that Petitioner’s fitness report be removed.   
 
Concerning Petitioner’s request for a SSB, the Board determined that Petitioner must exhaust his administrative remedies by petitioning the Marine Corps Officer Promotions Branch (MMPR-1) according to the Marine Corps Promotion Manual, Officer Promotions. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by removing his fitness report for the reporting period 1 June 2016 to 14 November 2016. 
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 
 
5.  The foregoing action of the Board is submitted for your review and action.