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 15 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 the 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 25 June 2020 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so.  The Board also considered the favorable 3 July 2020 AO furnished by the Marine Corps Counseling and Evaluation Section (MMRP-50). 
 
The Board carefully considered your request to remove your 1 August 2008 to 29 September 2008 Fitness Report, and to remove all failures of selection to lieutenant colonel.  The Board considered your contentions that your Reporting Senior (RS)  marked you below his average without sufficient observation or meeting the criteria for “meaningful personal contact” when writing an observed report with under 89 days of observation.  You also argue that your Reviewing Officer (RO), having just checked in had the same, if not less observation time as your RS, and that his observation should have been marked “insufficient.”  You implicitly contend that the fitness report caused your failures of selection to lieutenant colonel. 
 
The Board noted that, on 25 June 2020, the PERB modified your contested Fitness Report by removing the Reviewing Senior’s portion of the report in its entirety.  The Board, therefore considered removing the report, as modified by the PERB.     
 
The Board, however, substantially concurred with the AO and the PERB’s determination that the RO portion of the report is valid.  The Board specifically noted that per the Performance Evaluation System (PES) Manual, there is no established minimum observation period for an RO, and that your RO comments reflect sufficient observation during the reporting period.  The Board thus concluded that the contested report, as modified by the PERB, shall remain in your official military personnel file. 
 
With regard to your request to remove your failures of selection to lieutenant colonel, the Board  
noted that, at processing, the contested report was in the middle third of your RS’s profile (87.84 relative value (RV)).  The Board also noted that, out of your ten on-grade captain reports that generated a cumulative RV, three of them were in the top third of your RSs’ profile, six were middle third, and the contested report was lower third with a 86.28 cumulative RV.  MMRP-50 opined that the “erroneous RS markings on the report indicated starkly below average performance numbers . . .” (emphasis added).  However, the Board did not find it unusual that, as your first report as a captain, the cumulative RV was lower than that of subsequent on-grade reports.  The Board considered the fact that, as a major, out of your five on-grade reports --that generated a cumulative RV prior to the convene date of the Fiscal Year 2021 USMC Lieutenant Colonel Promotion Selection Board—only one generated a top third RV, and one generated a lower third RV; subsequently, two of six generated a lower third cumulative RV.  
 
The Board agreed with MMRP-50’s opinion that “the erroneous report from   and [I] may have factored into board member assessments of [your] competitiveness for promotion.”  However, the Board was not convinced that the change made by the PERB to your performance record was substantively enough to sway the promotion board’s decision.  The Board concluded that a determination that the contested report caused your failure of selection to lieutenant colonel is a matter of conjecture, and therefore recommended that you pursue relief via the Headquarters, Marine Corps (MMRP-1) special selection board process. 
 
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, 

4/25/2021
Deputy Director