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.    
 
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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 22 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.  In addition, the Board considered the advisory opinion contained in HQMC letter 1610 MMRP-13/PERB of 4 May 2020; a copy of which was previously provided to you for comment. 
 
On 26 July 2007, you commenced a reporting period for a fitness report which ended on 2 November 2007.  Your Reporting Senior (RS) reported to the command on 21 August 2007.  The fitness report during that period had a 3.21 average with a relative value of 81.59.  You eventually filed a request with the Performance Evaluation Review Board (PERB) requesting to change the RS observation for the fitness report in question to not observed based on your belief that the RS had insufficient observation of your performance during the period.  On 25 March 2020, the PERB recommended denial of your request after concluding that the RS met the minimum time requirements to issue an observed report and that no error exists in the fitness report.  You were provided a copy of their findings that were forwarded to this Board for consideration in the form of an advisory opinion.   
 
The Board carefully considered your arguments that the RS for the fitness report in question did not meet the minimum requirement to issue an observed report since he was only onboard 89 days of the 100 day reporting period.  You provided evidence that he checked onboard 27 days after the commencement of the reporting period and spend time away from the command for personal reasons related to his impending marriage.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case.  Specifically, the Board agreed with the PERB finding that the RS met the minimum observation requirements since his period of unavailability did not constitute a formal period of non-availability under the governing regulations.  As pointed out in the PERB report, in order to constitute a formal period of non-availability your RS would have needed to be unavailable for 30 days.  Since he reported 27 days after the commencement of the reporting period, this time did not qualify as an excludable period of non-availability.  Further, the Board agreed with the PERB that since the RO agreed with the RS evaluation, it lessens argument that the RS observation was somehow flawed.  Finally, the Board found no evidence of an injustice since the fitness report was favorable and you were promoted twice since the issuance of the report.  Therefore, the fact the report exists in your record and has a low relative value did not persuade the Board that an injustice exists.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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, 
 
4/24/2021
Deputy Director