Dear  
 
This letter is in reference to your reconsideration request received 24 January 2020.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your applications had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
Your request has been carefully examined by a three-member panel of the Board, sitting in executive session on 13 August 2020.  The names and votes of the members of the panel will be furnished upon request.  Documentary material considered by the Board consisted of your application and the matters submitted in support of your application.  The Board also considered the 28 October 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), and your 16 June 2020 rebuttal.   
 
The Board carefully considered your request to remove your fitness report for the reporting period 31 December 2003 to 22 March 2004.  The Board considered your contention that removal of the report is warranted due to numerous administrative and procedural errors that are in violation of the applicable Performance Evaluation System (PES).    
 
You were issued the report after being relieved of your duties as a platoon sergeant due to loss of trust by your chain of command.  The Board noted that you received three adverse attribute markings, that you were not recommend for promotion, and that you received a comparative assessment mark of “unsatisfactory,” all of which renders the entire report adverse.   
 
In your application, and in your rebuttal to the AO, you contend that there are material administrative and procedural errors that invalidate the report.  The Board determined that any administrative or procedural errors made by your reporting officials would only be material if they deprive you of a substantially accurate and fair portrayal of your performance and conduct during the reporting period.  Although you identified minor administrative and procedural errors, the Board substantially concurred with the AO and determined that the report remains valid, and that your evidence failed to disclose any [m]aterial error or injustice warranting removal of the report.      
 
The Board considered your contention that there was only one incident during the entire reporting period, and that your reporting senior (RS) did not consider the entire evaluation period when preparing the report.  The Board noted that your RS’s comments in Section C, Section D, Section F, Section G, and Section I, in aggregate, satisfactorily demonstrate that your RS evaluated your performance and conduct during the entire reporting period, and that there is no evidence in the record, and you submitted none, that your RS failed to consider the entire reporting period when he issued the report.   
 
You contend that your reviewing officer (RO) certified in Section K that the report is accurate and substantiated, but the third officer sighter (3OS) comments conflict with your RO’s certification.  You contend that your RO was therefore required, but failed to submit an addendum to resolve inconsistencies and disagreements.  The Board, however, substantially concurred with the AO, noting that it appears the 3OS had conflated the RS with his reference of “RO,” and although the 3OS took issue with the [RS’s] lack of comprehensiveness in the justification of his “Judgment” attribute marking in Section G, the 3OS’s adjudication is not exculpatory and it does not invalidate the report.   
 
In light of your contention that the 3OS comments conflict with your RS’s attribute marks and your RO’s certification, you argue that the 3OS was required to return the report to the reporting officials if it was not administratively and procedurally correct.  However, the Board agreed with the AO that this guidance was not contained in the PES manual, and did not pertain in 2004 when the report was processed.  As was the case in 2004, the 3OS did not return the report for correction, but rather arbitrated a perceived inconsistency with the RS’s attribute marking overlap and lack of comprehensiveness.  The Board also noted that your rebuttal focused on the underlying validity of the respective markings, but did not appear to contend that the actual format and content of the associated justifications were invalid.  In the end, the 3OS documented a perceived incongruity, but also caveated his adjudication via the comments “That the MRO’s overall performance was adverse due to his inability to account for his Marines would have been enough for the purposes of his relief for cause and this report” and “I have reviewed both the fitness report and the MRO’s statement, and am confident the basic elements leading to the relief for cause are valid.” 
 
The Board considered your various contentions that the report is ripe with conjecture on the command’s part, that your reporting officials made claims without supporting evidence, and that the reporting officials should have provided material evidence to support the legitimacy of their statements.  You also assert that the fitness report should be removed for their failure of due diligence in complying with the PES manual, and based on its submission 
with innuendo and not facts.  The Board noted that you exercised your right to rebut your RS’s markings and comments, chose not to rebut any markings or comments made by your RO, and that the 3OS adjudicated all factual differences.  The Board, again, substantially concurred with the AO that, for fitness report purposes, an assumption can be made that the 3OS (Battalion Commander) actually conferred with the reporting chain, and specifically with the RO, as referenced in his remarks, and that his comments were in fact factual in nature, and that the 3OS is not necessarily required to independently provide corroborating evidence to document his or her research, nor to support findings and comments.  Moreover, there is no evidence in the record, and you submitted none, to substantiate that your fitness report is anything other than a fair and accurate evaluation of your performance and conduct during the reporting period.  The 3OS specifically stated that you were, in fact, “afforded every opportunity to succeed and [you were] previously counseled specifically on the issues that led to [y]our relief.” 
 
The Board determined that your contention that pursuant to MCO P1610.7E, there is no adjudication authority granted to the 3OS, is without merit.  The Board noted that, pursuant to the PES manual, “[r]eporting officials must endeavor to thoroughly adjudicate the report or resolve any perceived injustice before submitting the report…”  The Board further noted that the PES manual uses the term “reporting officials” to simultaneously refer to the RS, the RO, and the 3OS when appropriate.  The Board thus concluded that your 3OS did in fact have adjudicating authority, and that adjudicating factual differences is the primary task for the 3OS.   
 
The Board considered your assertion that the 3OS inserted additional adverse information to inflate the report to more than just one incident, and that you were not afforded the opportunity to rebut the 3OS’s comments.  The Board substantially concurred with the AO and determined that this contention is without merit.  The Board determined that the 3OS’s comment does not introduce new adverse material, but rather adds the 3OS’s own factual insight and context regarding your inability to account for your Marines in the field and in garrison.  The 3OS also added context based on discussions with the RO, and this was perfectly acceptable pursuant to the PES manual.   
 
The Board considered your contention that the report was submitted to Headquarters Marine Corps (MMRP) –then MMSB– late by the 3OS.  The Board noted that the report was due to MMSB no later than 30 days after the end of the reporting period, but that the 3OS submitted it approximately three weeks late.  The Board noted that the timeliness in submitting a fitness report ensures complete and accurate updates of Marines’ OMPFs.  The Board, however, concluded that the untimely submission of your fitness report was not a material error or injustice warranting removal of the report.   
 
The Board considered your contention that the requirements of the PES manual are binding on all commanders, officers in charge, and personnel serving as reporting officials, and that any deviation from instructions in the PES manual must be authorized by the Commandant of the Marine Corps (MMRP-30).  The Board determined that MMSB’s review and acceptance of the contested fitness report for inclusion into your official military personnel file, and subsequent AOs attesting to the validity of the report constitutes its authorization for any deviations from the PES manual your reporting chain may have made at the time it was submitted.   

Regarding your contention that the senior officer did not sign the Addendum pages as required MCO 1610.7E, the Board concurred with the AO that this contention was previously adjudicated and does not constitute new material.  More importantly, the Board noted that the 3OS did sign both of the Addendum pages that he authored.  
 
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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.