Docket No. 7032-20
 
 
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 17 September 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 2 May 2018 advisory opinion (AO) from the Marine Corps Performance Evaluation Review Board which was obtained and provided to you during your initial case, Docket No:  20180003973. 
  
The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
The Board carefully reconsidered your request to correct your official military personnel file (OMPF) as follows:  (1) remove your fitness report (FITREP) for reporting period 24 June 2015 to 31 May 2016; (2) remove your FITREP for reporting period 1 June 2016 to 20 October 2016; and (3) remove all failures of selection to lieutenant colonel.   
 
The Board noted your previous request, Docket No:  20180003973, was denied because the Board determined there was no probable material error or injustice warranting removal of either FITREP or your failure of selection.  Specifically, the Board determined your contested FITREPs were administratively and procedurally correct as written and filed.  Further, the Board determined the Reviewing Officer’s (RO) statements and Third Officer Sighter’s (3OS) comments reconciled the differences between your statement and your Reporting Senior’s (RS) comments, in accordance with the Performance Evaluation System (PES) Manual.  The Board 
recognized the substantial friction between yourself and your RS but was not convinced your RO lowered your comparative assessment mark on your FITREP ending 31 May 2016 due to your RS’s purportedly unjust portrayal of your performance, especially considering the two mishaps that occurred during the reporting period.  Additionally, the Board recognized the errors that were initially made by your chain of command in preparing their recommendation for your relief and concurred with you that it may have been somewhat prejudicial.  However, the Board noted that those errors were corrected, and the Board was not convinced that you would not have been relieved had those initial errors not been made or that your FITREP would have been marked any differently.   
 
In your current request for correction, the Board considered your focused contention that your RS acted maliciously in his behavior toward you and his reports were designed to “wreck” your chances for promotion.  The Board carefully reviewed and considered the 11 examples you contend show harmful intent, intentional bias, and your subjection to a higher degree of hostility than mere bias.   
 
The Board considered your contentions that from the time of his arrival, your RS demonstrated his intent to deliberately use his position to end the careers of Marines in his command that “weren’t good enough for further advancement.”  You provided an example of your RS’s unjust attempt to “torpedo” a Staff Sergeant’s career in March 2016.  The Board also considered your contention that because you “thwarted” your RS’s plan when you provided exculpatory information proving the Staff Sergeant’s innocence, your RS responded angrily, telling you that you were “betting on the wrong horse.”  The Board considered your contention your RS’s hostility toward you increased to the point that he asked Headquarters Marine Corps (MMOA) to provide a replacement for you the following week.  You contend that, having been told by your monitor that an adverse FITREP was required, your RS implemented a malicious plan which resulted in your adverse FITREP and ultimate relief for cause.   
 
The Board considered your contention your RS’s desire to torpedo your career was revealed and his plan was put into motion as soon as a Marine in your company was hurt.  You contend your RS, without the any evidence from a safety investigation, command investigation, command climate survey, responses, rebuttals or due process, passed judgment on you.  The Board also considered your contention that having been moved to an office location where you could observe those who visited your RS’s office, you noted the command investigating officer (IO), who was not part of the battalion and had no business with the battalion other than his assignment as IO, met with your RS several times during the investigative process.  You contend this created an appearance of undue command influence on the investigation.  The Board also considered your contention that to add to the lack of due process, the IO never asked you a question or conducted an interview with you.  You further contend your RS forbade you to talk to the IO.  You state that you obeyed and refrained from talking to the IO until the investigation was complete.  You contend that when you asked the IO if there was any undue influence, the IO said that he would “need to talk to a lawyer to answer this question,” which indicated the probability of undue influence.  The Board considered your contention that many of the facts regarding your RS’s lack of support for maintenance personnel shortfalls and the absence of qualified instructors with enough experiences were not included in the investigation by the IO because you were prohibited, by your RS, from speaking to the IO.  Lastly, the Board considered your contention that your RS confirmed his malicious intent on 20 October 2016 when he made the statement “whatever (career) track you were on, you are now off of it.”  You contend this comment made it clear your RS intended to torpedo your career. 
 
Further, the Board considered each of the errors and inconsistences you highlighted in your current submission regarding your transfer FITREP for the reporting period 1 June 2016 to 20 October 2016 which you contend are evidence of your RS’s “malicious intent” to issue you an adverse FITREP.  Specifically, the Board considered the substantive errors that you explain such as your RS incorrectly implying it was a “training mishap” when it was an “operational mishap” that was not related, in any way, to training or instruction provided by you, and your RS’s exaggeration regarding the injuries, number of mishaps, and damages.  You contend your RS “maliciously took advantage of lesser incidents” to accomplish his goal of replacing you.  The Board also considered the substantive errors such as your RS’s comments regarding you as “in command,” your ability to effectively communicate, and many ambiguous comments that were “suggestively negative, disparaging, or contradictory.”  Additionally, the Board considered your contention that because the transfer FITREP is “not factual, objective, [or] free from ambiguity” it is not written in accordance with the PES Manual.  Lastly, the Board considered your contention of an administrative error regarding “Section F, Item 5” being incorrectly written as “Section F, Item A” and which you also contend does not provide “specific, verifiable, substantive, quantifiable” justification to support the adverse mark.   
 
The Board also considered your contentions that your annual FITREP, which covered the reporting period of 24 June 2015 to 31 May 2016, omitted actions that would have reflected positively on your performance.  You contend the omission of positive actions was part of your RS’s play to relieve you.  The Board further considered the alleged comments made by other regimental staff officers that your RS “really knows how to line up a shot” as a reference to your RS’s malicious intent to torpedo your chances for promotion, and “the relief was political,” and your RS manipulated the process unfavorably” against you.   
 
Additionally, the Board considered your contention your RS was colluding with another lieutenant colonel to sabotage your career.  Specifically, you contend that in 2010, you defeated this same lieutenant colonel, who was a major at the time and considered the premier instructor at the school because he had won six previous war games.  You contend there is evidence the lieutenant colonel is still following your career by tracking you on social media and having discussions with your mentors in the years after the war game defeat.  You contend that your recent discovery that your RS and this lieutenant colonel are “cronies” has given rise to the suspicion they are colluding against you.   
 
The Board considered your contention that the “biggest torpedo” occurred on 26 August 2016 when your RS deliberately withheld information of a general officer’s tour in the area.  Specifically, you contend that after your RS “stood down the company” because the inspection had been canceled, your RS maliciously and deliberately did not inform you or your company of the rescheduled inspection fully knowing your spaces would be cluttered with hand-me down furniture being transferred from one location to another because of the cancellation.  You contend the presence of the furniture and the company not being in inspection status “had everything to do with your RS and his intent to wreck your chances of promotion.” 
 
Lastly, the Board considered your contention that the devotion of your men reflects more of your character than your RS’s description.  Specifically, you assert that your men, even after your removal, invited you back to the unit to be the promotion officer of two enlisted marines who had served with you.   
 
The Board carefully considered your contention that the foregoing examples support your request to have the FITREPs expunged and your failures of selection removed.  The Board also considered your contention that the “red flag in this whole business” is your excellent performance prior to the time your RS took command of the battalion and your subsequent excellent performance after you “escaped the clutches of [your] vindictive, malicious senior.”  As examples of your subsequent performance, the Board considered your recently awarded Meritorious Service Medal, the Dr. Elihu Rose award, and your admission to the International Honor Society.   
 
After careful consideration of your focused examples of bias and hostility, the Board concluded the new evidence does not establish your contention your RS intentionally misrepresented you to the RO or maliciously executed an intentional and deliberate plan to torpedo your career.  The Board concluded the evidence shows you and your RS had different leadership styles and, rather than adjust your leadership and communication approach in response to your RS’s feedback, you instead viewed the conflict as bias, hostility, and malicious intent aimed at torpedoing your chances of promotion.  The Board noted it is not unjust for your RS to have different expectations for the unit than for you, and for him to respond when you did not meet those expectations.  Further, the Board concluded the new evidence still does not overcome the allowed differences in your leadership styles.  In summation, the Board concluded the additional evidence still falls short of overcoming the presumption of regularity in the reporting officials’ decisions to issue you an adverse FITREP and relieve you of your duties.  In the end, the Board concluded there was insufficient evidence of material error or injustice warranting removal of either FITREP.  Without removal of the FITREPs, the Board further concluded that removal of your failures of selection is not warranted.   
 
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, 
10/17/2021
Executive Director