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

Docket No:5347-18

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 27 August 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 Board also considered the enclosed 18 June 2018 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 carefully considered your request to remove your fitness report for the reporting period 2 June 2016 to 22 June 2017.  The Board considered your contentions that the Reporting Senior (RS) attempts to justify adverse markings by referencing a Command Investigation (CI), and references a nonpunitive formal counseling.  You argue that the report is in violation of MCO 1610.7 because the adverse markings from the RS are being utilized in lieu of disciplinary action and are not relevant to your performance, and that "the issuance of non-punitive letters of admonition, caution, or reprimand may not be mentioned and is the basis of the adverse fitness report."  
 
The Board concurred with the AO that the command investigation (CI) was properly conducted and the investigating officer (IO) substantiated the existence of an inappropriate relationship with a female Navy lieutenant within the same command.  Additionally, it was the opinion of the IO that you made a false official statement.  Based on the IO's opinions reflected in the CI, the commander formally counseled you on 30 May 2017 for the inappropriate relationship and making a false official statement.  As a result of his loss of special trust and confidence, you were relieved of command.  Therefore, Section A, Item 5a was appropriately marked with an "X" denoting the your relief, rendering the report adverse.  The Board concurred with the AO that the adversity of the report requires written justification comments, and appropriate written justifications were provided.  The Board noted that you were provided the opportunity to respond to both the RS and the Reviewing Officer (RO), and that the RO and third officer sighter commented on your rebuttal, as appropriate.  The Board noted that the timeliness of the report is not in keeping with policy, but untimely submission, in and of itself, is not justification for removal of a report.   
 
With regard to your contention that the report is in violation of MCO 1610.7, the Board noted that, pursuant to the Manual of the Judge Advocate General, “[a] nonpunitive letter will be kept a personal matter between the member and the superior issuing the nonpunitive letter.”  However, [t]he facts underlying a nonpunitive letter may be used to support…for relief of command…”  The Board thus concluded that the contested report is administratively and procedurally correct as written and filed, and it does not constitute probable material error or injustice warranting corrective action. 
 
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.