From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF , USMC, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) MCO 1610.7 Encl: (1) DD Form 149 w/enclosures (2) NAVMC 10835A, USMC Fitness Report (20150902-20151116) (3) MMRP-30 Memo, subj: Performance Evaluation Review Board (PERB) Advisory Opinion ICO [Petitioner], 13 Mar 20 (4) G7/EOTG, subj: FITREP Change Request for [Petitioner], 7 Feb 20 (5) MMRP-13 Memo, subj: Performance Evaluation Review Board (PERB) Decision in the Case [Petitioner], Docket No. 388-20, 25 Jun 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting that his naval record be corrected by removing the Reviewing Officer (RO) comments and markings on his fitness report (FITREP) for the period 2 September 2015 to 16 November 2015. 2. The Board reviewed Petitioner’s allegations of error or injustice on 3 June 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all of the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. On 22 December 2015, Petitioner received a FITREP for the period 2 September 2015 to 16 November 2015. See enclosure (2). c. In 2017, the Performance Evaluation Review Board (PERB) approved Petitioner request to have his Reporting Senior’s (RS) comments and markings removed and the rating period changed to “unobserved,” as it was for less than 90 days. Although the RS comments and markings were removed, the RO comments and markings remained on the FITREP. See enclosure (3). d. Petitioner contends that the entire FITREP should have been rendered “unobserved” when the PERB removed the RS comments and marking, and that the RO comments and markings should therefore also be removed. See enclosure (1). e. By memorandum dated 7 February 2020, Petitioner’s RO endorsed Petitioner’s request that the entire FITREP be changed to “not observed,” and that the RO comments and markings therefore be removed. He stated that, in hindsight, the FITREP should have been a “not observed” report. See enclosure (4). f. By memorandum dated 13 March 2020, the Performance Evaluation Section of the Manpower Management Records and Performance Division (MMRP-30) provided an advisory opinion (AO) recommending that Petitioner’s request be denied. MMRP-30 opined, in part, that Petitioner’s request centers on his perception of the competitiveness of his FITREP with the RO comments and markings, as opposed to any material error and/or injustice in those comments or markings. The AO noted that the minimum RS observation requirements of reference (b), which justified the removal of the RS comments and markings in 2017, do not pertain to the RO, as the RO’s observation criteria is divorced from the RS criteria. See enclosure (3). g. On 25 June 2020, the majority of the PERB concurred with the MMRP-30 AO and denied Petitioner’s request to remove the RO comments and markings. The PERB majority found that Petitioner did not demonstrate probable material error, substantive inaccuracy, or injustice warranting modification of the FITREP in accordance with reference (b). See enclosure (5). CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Board determined, contrary to the AO, that Petitioner’s request warrants relief. Acknowledging the AO comment that the minimum RS observation requirements of reference (b) do not pertain to ROs, the Board nonetheless found that the retention of the RO comments and markings constitutes an injustice in this case. First, the RO comments in enclosure (2) make specific reference to the since-removed RS ratings and comments. Retention of the RO comments under these circumstances invites speculation of what those since-removed comments and markings contained, particularly given the relatively low comparative assessment assigned by the RO. Second, the RO himself stated that, in hindsight, his portion of the FITREP should have been “not observed.” As the AO noted, there are no hard guidelines regarding what constitutes sufficient knowledge and observation for a RO. Given the lack of such guidelines, the Board found that the RO’s admission that he had insufficient knowledge and observation to accurately rate the officer provided definitive guidance on the matter. RECOMMENDATION: In view of the above, the Board recommends that Petitioner’s naval record be corrected by redacting Section A, Item 11.a through 11.f of the subject FITREP, redacting all of Section K, and by marking Section K.1 as “insufficient.” 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above titled matter. 5. The foregoing action of the Board is submitted for your review and action. 6/22/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: Board Recommendation Approved (Grant Relief – Remove RO Comments and Markings) 7/13/2021 Assistant General Counsel (M&RA)