DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1670-18   
Ref: Signature Date 

Dear 

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 6 February 2019.  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.  The enclosed 6 March 2018 advisory opinion (AO) from the Marine Corps Performance Evaluation Review Board (PERB) was sent to you for an opportunity to comment prior to being considered by the Board.  After the period for comment expired without a response, the case was presented to the Board. 
      
The Board carefully considered your request to remove your fitness report (FITREP) for the reporting period 16 December 2016 to 30 June 2017.  The Board considered your contentions that (1) the contested FITREP was in retaliation for your protected communication via your request mast; (2) your Reporting Senior (RS) and chain of command violated Marine Corps Order (MCO) 1500.61 (Marine Leader Development) and MCO P1610.7F (Performance Evaluation System (PES)) by never formally assigning you a billet, or providing you a billet description or initial counseling; and (3) your Reviewing Officer (RO) had already been reassigned and thus should not have remained as your RO.  The Board, however, substantially concurred with the PERB’s conclusion that the contested report is administratively and procedurally correct as written and filed.  Specifically, the Board found that neither your RS nor RO violated mandatory provisions of MCO 1500.61 or MCO P1610.7F; that you did not overcome the presumption of regularity that applies to the acts of public officials by presenting evidence to show that you were not assigned to a billet, provided a billet description, or given an initial counseling; and that, in any event, while such actions are recommended, they are not required.  The absence of an initial counseling would not justify removal of a FITREP.  

The Board also determined that you failed to provide sufficient evidence to support your contention that the contested FITREP was in retaliation for your protected communication via request mast. In this regard, the Marine Corps Inspector General completed an investigation into your 9 November 2016 complaint of reprisal under Title 10, U.S. Code Section 1034, “Protected communications; prohibition of retaliatory personnel actions,” implemented by DoD Directive 7050.06, “Military Whistleblower Protection,” and concluded that your complaint was not substantiated.  Finally, the Board determined that you failed to provide sufficient evidence to support your contention that the RO improperly remained your RO for the FITREP after having been reassigned.  Therefore, the Board concluded that the contested FITREP does not constitute probable material or injustice and shall remain in your record. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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,