Docket No: 2938-20 Docket No: 5303-20 Docket No: 4056-20 Ref: Signature Date Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. The Board determined that your personal appearance, with or without counsel, would 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. A three-member panel of the Board, sitting in executive session, considered your applications on 21 January 2021. 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 31 October 2017, 26 September 2018, and 13 May 2019 advisory opinions (AO) that were furnished by the Marine Corps Performance Evaluation Review Board (PERB) for your previously considered petitions to the Board, as well as your 21 November 2017 response to the 31 October 2017 AO. The Board carefully considered your request to modify or remove your Change of Reporting Senior (CH) fitness report for the reporting period 3 December 2004 to 13 April 2005, to modify your CH fitness report for the reporting period 23 November 2010 to 15 February 2011, and to remove your Change of Duty (CD) fitness report for the reporting period 1 June 2013 to 31 December 2013, to remove all failures of selection (FOSs), to grant the convening of a Special Selection Board (SSB), and to grant any other corrective action the Board deems appropriate. With regard to your CH fitness ending 13 April 2005, the Board considered your contention that your reporting senior (RS) did not invoke an exception to policy for writing an observed report that had less than 90 days of observation. You assert that you did not join the command until 6 January 2005, and therefore had 44 consecutive days of non-availability that your RS did not account for. The Board agreed with you that, when factoring in the period of non-availability, the reporting period was less than 89 days; the threshold for submitting an observed report. The Board also agreed that your RS failed to account for the period of non-availability, and therefore did not invoke an exception to policy for writing an observed report for an observation period of 89 days or less. Pursuant to the applicable Performance Evaluation System (PES) Manual guidance, for periods of 89 days or less, RSs may submit an observed report if in their judgment, they possess sufficient observation and the basis of the observation results from meaningful personal contact with the Marine reported on, and the information provided is significant and provides a fair assessment of the Marine reported on. The Board determined that your RS’s Section I comments met the spirit and intent of the PES Manual guidance for observed reports, and that his failure to account for a period of non-availability does not invalidate the report. Additionally, after reviewing your RS’s 24 March 2020 advocacy letter, the Board determined that he recommended a correction to the fitness report because it was written prior to you attending the Marine Air-Ground Task Force Intelligence Officers Course, and not because he did not have sufficient observation of you during the reporting period. The Board thus determined that, despite your RS’s administrative errors of not documenting the period of non-availability and invoking an exception to policy, your CH fitness report ending 13 April 2005 is valid and it shall remain in your official military personnel file (OMPF). With regard to your CH fitness report ending 15 February 2011, the Board considered your contentions that, pursuant to PES Manual guidance, even if the RS renders a report not observed, the reviewing officer (RO) is not precluded from providing his or her own assessment and comments. You assert that this report covers a period when you were filling a command billet, and that your RS and RO were in a unique position to communicate [via the fitness report] to a promotion selection or command board of your future potential for promotion and command. You argue that it is unjust that this report omits RO comments, and that it is in the best interest to both the Marine Corps and yourself to have your RO’s comments documented in your official record. The Board, however, substantially concurred with the AO and the PERB’s decision that your CH fitness report ending 15 February 2011 is valid as written and filed. Specifically, your RO marked Section K-1 as “Insufficient.” As such, no further marks or comments are to be made in the remainder of Section K. Additionally, your RO’s proposed comments furnished with your application, submitted more than seven years after the end of the reporting period, may be furnished to selection boards without modification to the contested report. The Board thus determined that your CH fitness report ending 15 February 2011 shall remain as is in your OMPF. With regard to your CD fitness report, the Board considered your contentions that your RS failed to adhere to the PES Manual requirements and directions, and that he failed to adhere to III MEFO P5200.2J. Specifically, you argue that your RS did not use the approved formatting for communicating with your RO, which caused confusion in his Section K assessment marking. The Board also considered your contention that your RS’s comments do not match the attribute markings, that your RS made adverse comments about you to your RO, and that your RS took actions that made you less competitive for key billets and promotion. You assert that this fitness report caused your FOSs and non-selection for resident Professional Military Education (PME). The Board, however, substantially concurred with the AO and the PERB’s decision that your CD fitness report is valid as written and filed. In this regard, the Board noted that, according to the PES Manual, there is no scale to “match” the attribute markings with the Section I comments. Additionally, your RS’s recommended comments provided to your RO are not deemed derogatory or adverse, and the PES Manual does not prohibit RSs from providing comments and recommendations to ROs. 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,