Dear : 
 
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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 30 June 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 26 February 2020 advisory opinion (AO) furnished by Marine Corps Performance Evaluation Review Board (PERB).  The PERB’s AO was provided to you on 7 May 2020, and your rebuttal (undated) was received on 10 May 2020.   
 
The Board carefully considered your request to remove your fitness report for the reporting period 29 March 2019 to 2 December 2019 and “any derogatory materials” associated with the contested fitness report.   
 
The Board considered your contention that the primary basis of adversity is clearly in violation of Federal Rule and Regulation.  You assert that the action of the , following your Senate Inquiry on the adversity of this report, further tarnish the Performance Evaluation System (PES).  The Board considered your specific contentions as follows: 
 
The Third Officer Sighter (3OS) stated:  “I have adjudicated the factual differences.”  You contend that, per the PES, it is the role of the reporting senior (RS) to adjudicate factual differences between RS’s evaluation and the Marine Reported On’s (MRO) statement.  You argue that this suggests that the adversity was unsupported at the time and that the reporting chain of this report has been modified so that the 3OS can assume the role of the RS and reviewing officer (RO).  You assert that, either way, the 3OS claims to have adjudicated the findings via a command investigation (CI) initiated well after both the RS and RO comments and amount to unacceptable prejudicial comments; 
 
The CI occurred after your protected communication to Senator , and included information from outside of the contested fitness report reporting period; 
 
Your reporting chain seemed to be dismissive of facts that you brought forward, and that the facts are well supported by the CI, and 
 
Your command is breaking the law with the multiple retaliatory actions, such as recommending you be involuntarily transferred to the Individual Ready Reserve (IRR) and recommendation for administrative separation. 
 
The Board also considered your contentions raised in your rebuttal to the AO.  In your rebuttal, you contend that the AO is incomplete, replete with rhetorical fallacies, that it is solely based on your statement (submitted with your application) regarding your contested fitness report, and that it disregards the full content of your application package.  You also contend that the AO selectively picked the contents that fits the narrative of your reporting officials, and essentially repeats their position.   
 
The Board substantially concurred with the AO regarding your contention that your 3OS adjudication of factual differences suggests that the adversity was unsupported at the time and that the reporting chain of this report has been modified so that the 3OS can assume the role of the RS and reviewing officer.  The AO determined that this contention lacks merit.  The PES manual requires the 3OS to take action to resolve inconsistencies and disagreements between the Marine reported on and the RO, and in your case, your statement did in fact disagree with the RO as to matters of fact.  Additionally, regarding your 3OS’s reference of a CI, the AO noted that your reporting chain deferred report processing until completion of the CI, and that your 3OS also served as the Convening Authority of the CI.  The CI was explicitly tasked to investigate your performance, which subsequently validated your substandard performance, as documented in the contested fitness report.   
 
With regard to your contention that the CI occurred after your protected communication to Senator Cardin, and included information from outside of the contested fitness report reporting period.  The Board noted that the Whistleblower Reprisal Investigation Directorate, DoD Office of Inspector General, completed an oversight review of your complaint and concurred with the Inspector General of the Marine Corps’ recommendation that your complaint did not meet the requirements for an investigation in accordance with Title 10, United States Code, Section 1034 (10 U.S.C. §1034), “Protected communications; prohibition of retaliatory personnel actions,” implemented by DoD Directive 7050.06, “Military Whistleblower Protection.”  The Board also concurred with the AO that the CI convening authority  specifically tasked the Investigating Officer (IO) to conduct a CI into the facts and circumstances surrounding your performance, and the Board determined that the CI was not specifically boundd to the contested report’s reporting period.  The Board determined that there is no evidence in the record, and you submitted none, to substantiate your allegation of reprisal.   
 
With regard to your contention that your reporting chain treated your factual comments as “interpretation,” that the CI and your reviewing officials’ comments were riddled with personal opinions, that they reported minor limitations, shortcoming, occasional lapses or weakness, and that their overall effort was clearly geared toward calumny in order to paint a picture to justify your separation, the Board determined that this contention lacks merit.  The Board noted that the PES manual does not preclude reporting officials from offering opinions, but mandates that any report adversity be documented with a factual basis.  The Board determined that the CI as well as the report certainly addressed your deficiencies beyond minor limitations, shortcomings and occasional weaknesses, and again, any inconsistencies or disagreements between you were fully adjudicated by the reviewing officials. 
 
The Board considered your contention that your Command is breaking the law and continues to break the law with multiple retaliatory actions.  In your initial Addendum Page rebuttal, you introduce the contention regarding the Anti-Deficiency Act and perceived lack of resources from the command that hindered your ability to adequately perform required work.  The AO determined, and the Board concurred, that your petition omits any evidence to justify this claim.  Additionally, although this contention does not allege an error or injustice in your official military personnel file (OMPF), the Board noted that the Command Inspector General,   and the Commanding General,,  , conducted an inquiry into your concerns of legal error and determined that your allegations were unfounded.  The Board thus substantially concurred with the legal analysis that was conducted by the  legal advisory and concluded that this contention lacks merit.  The Board also substantially concurred with the AO and noted that, contrary to your contention, the report’s adversity was not solely based on your command’s interpretation of law, but rather your documented substandard performance.  Your RS reported, in part, that you were not responsive to counselings, and that you required “significant guidance, supervision, follow-up.”  Your RO noted that he also had counseled you, and that “[t]he primary basis of the adversity of the RS’s evaluation is MRO’s unsatisfactory performance due to his disobedience of a direct order to assist the battalion’s response to an IG [inspector general] inquiry, and his failure to attend battalion conference calls.”  
 
In your rebuttal to the AO, you contend that “the cited UCMJ [Uniform Code of Military Justice] violations” listed by the RS and RO, “disobeying a direct order,” is a criminal allegation that has not being adjudicated, and that this allegation was one of the basis for making the report adverse.  You argue that, because the criminal allegation was not yet fully adjudicated, it should not be included in the fitness report, and that your 3OS should have, therefore, returned the report for correction to your RS and RO.  The Board noted that your RS described your disobedience of a direct order as an “infraction” and recognized that, instead of charging you with violation of the UCMJ, he chose to counsel you and afford you multiple opportunities to correct your deficiencies, as was his prerogative.  The Board thus concluded that the matter of you disobeying a direct order was addressed during the reporting period, that the counseling for your infraction did not require further adjudication, and that your RS had sufficient justification to issue you an adverse fitness report irrespective of your disobedience of a direct order.   
 
The Board considered your contention that no rules or regulation mandates additional drills from Selected Marine Corps Reserve (SMCR) Marines to attend “administrative drill” and that this notion of administrative drill is a total fabrication, as well as your contention regarding your Command’s lack of authority to order you to attend additional drills without your consent, and your implicit allegation that it fraudulently balances its budget “on the back of its members.”  The Board noted that these contentions do not allege an error or injustice in your OMPF, and that you appear just to disagree with your chain of command and the AO, which does not make it an error. 
 
The Board considered your contention that your fitness report is in violation of the PES manual because it was used as a disciplinary tool, as a counseling tool, and as a lever to exert influence by involuntarily ordering you to non-paid inactive duty training (IDT).  The Board determined that this contention lacks merit.  The Board noted that that your fitness report was rendered adverse due to your substandard performance during the reporting period, and that you were repeatedly counseled during the reporting period regarding your substandard performance.  Next, the Board noted your Command’s policy that afforded select members the opportunity to earn retirement points for work performed between drills, and that you were provided and encouraged to document your time worked between drills so that you could be compensated. The fact that you failed to record or present pay entitlements in accordance with the Battalion's Associate Duty Policy Letter to ensure that you were properly compensated, is entirely your responsibility.  Lastly, the Board noted that your fitness report was carefully screened by Headquarters Marine Corp (MMRP-31) prior to processing, and found to be valid as written.   
 
The Board considered your contention that your [commanding officer] chose to abuse his administrative discretion to circumvent due process, and that all of the adverse actions taken by your command violate your constitutional rights.  The Board determined that this contention does not allege an error or injustice in your OMPF, and that you appear just to disagree with your chain of command’s course of action, which does not make it an error.   
 
In view of the foregoing, the Board determined that your fitness report was administratively correct, procedurally complete and valid at the time of submission, and remains as such.  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 of the contested fitness report or derogatory material from your OMPF.  
 
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.