Docket No: 4172-20 
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 18 May 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, as well as the 29 June 2020 advisory opinion (AO) furnished by the Marine Corps Office of Legal Counsel (JPL) and your response. 
 
The Board carefully considered your request to remove your 24 June 2019 Report of Substandard Performance of Duty and all associated documents from your record.  The Board considered your contentions that: 1) the report of investigation (ROI) was not included in your record as required by Volume 15 of the Marine Corps Legal Support and Administration Manual (LSAM); 2) your Commanding Officer’s (CO’s) request for disposition incorrectly states that any substandard performance happened between March and December 2018, when any performance issue was for three months leading up to Christmas 2018; 3) the statements taken by the investigator were not sworn to and the findings appear to be based upon rough, incomplete, non-verbatim, cryptic notes of the investigator; 4) you did not receive legal counsel when questioned; 5) the investigator implied that you intended to hook up the gunnery sergeant (GySgt), when the evidence does not support that finding or inference; 6) the investigating officer (IO) evidenced bias and a failure to investigate text messages and emails; 7) the IO seems to have misunderstood the GySgt’s status during permanent change of station season.  You also furnished a supplemental statement regarding alleged deleted emails, when you were directed to tell the GySgt to report to work, and the impact of your oral statement. 
 
The Board, however, substantially concurred with the AO that your actions were accurately captured in your Report of Substandard Performance of Duty.  In this regard, the Board noted that an anonymous complaint was filed alleging that a GySgt was being improperly accounted for as present for duty, the IO opined that you were aware that the GySgt was not executing any work for the Marine Corps for the majority of the period between March 2018 and December 2018, yet you certified that he was present for duty, based upon the findings of the investigation, your CO endorsed the investigation and recommended that your failure in judgement be addressed through non-punitive, corrective measures.  The Board also noted that the Commander, Marine Corps Installations Command issued your Report of Substandard Performance of Duty on 24 June 2019 for improperly certifying a GySgt’s accountability as ‘present for duty’ while fully aware that he had not executed work for the command during that time.  The Board noted, too, that according to the LSAM, in all cases where the General Court Martial Convening Authority (GCMCA) “finds that the officer’s performance or conduct was substandard, the GCMCA will generate a Report of Substandard Performance of Duty.”  The Board determined that the GCMCA acted within his discretionary authority by finding that your actions constituted substandard performance, issuing your Report of Substandard Performance of Duty, and by directing that your adverse material be included in your record. 
  
Moreover, the Board noted your statement in response to your Report of Substandard Performance of Duty, in which you fully accepted responsibility for your actions giving rise to the Report of Substandard Performance of Duty and your acknowledgment that based upon the length of the legal process you should have and would have made a different decision.   
 
Concerning your contention that the ROI was not included in your record, the Board noted that the LSAM does not specifically require the inclusion of the ROI when issuing a Report of Substandard Performance for Duty.  The Board determined that, even if the ROI it was required, the absence of the ROI would constitute a harmless error.  The Board also determined that the absence of the ROI from your record is not substantive in nature and is not sufficiently significant to have changed the outcome of your case, thus, the absence of the ROI does not invalidate or warrant removal of your Report of Substandard Performance of Duty. 
 
Concerning your contentions regarding the conduct of the investigation, the IO and your statements regarding the timeline and circumstances leading to the investigation, the Board acknowledged your statement, response to the AO and evidence.  However, the Board determined that despite the prevailing circumstances, you did certify that the GySgt was present for duty, you knew he was not present, you acknowledged that this did occur, and you accepted responsibility for your actions.  Moreover, the Board is not an investigative body and relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharge their official duties.  The Board found that there was insufficient evidence to overcome this presumption.  The Board further noted that that the evidence related to your substandard performance was reviewed by multiple general officers and determined that the evidence supports the substandard performance noted in your Report of Substandard Performance of Duty.  Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action.  
 
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, 
5/24/2021
Executive Director