Docket No: 3424-20
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.     
 
A three-member panel of the Board, sitting in executive session, considered your application on 16 April 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, and applicable statutes, regulations, and policies.  The Board also considered the 2 April 2020 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
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 a personal appearance was not necessary and considered your case based on the evidence of record. 
 
The Board carefully considered your request to remove the fitness report covering the period from 2 May 2016 to 2 September 2016.  In the alternative, you requested the Board change the report to “not observed.”  The Board considered your contention the fitness report was in error and unjust because it was based upon a command investigation that substantiated misconduct allegations against you despite a lack of evidence.  The Board considered the details you dispute, in your current and prior petitions, regarding the actions taken throughout the conduct of the investigation and the resulting adjudication of the misconduct.  The Board also carefully considered each of the advocacy letters submitted with your request for relief.   
 
The Board, however, substantially concurred with the AO.  The Board noted your statement alone does not provide sufficient evidence of an error or injustice in the command investigation which was relied upon by your command and scrutinized by the entire chain of command to include the Commanding General and his legal counsel.  Further, the Board noted a conviction at court-martial or a guilty finding at nonjudicial punishment were not required in order for the command to relieve you from your drill instructor duties nor does the lack of adjudication at those levels invalidate the fitness report.  Based on the available evidence, the Board concluded there was insufficient evidence of an error or injustice to warrant granting your requested relief.   
 
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,