DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5348-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 1610.7 (PES) Encl: (1) DD Form 149 w/attachment (2) CMC memo 1610 MMRP-13/PERB of 18 Jun 18 1. Pursuant to the provisions of reference (a), Petitioner, a retired commissioned officer of the Marine Corps, filed enclosure (I) with this Board, requesting that his fitness reports for the reporting periods I April 2015 to 31 May 2016 and I June 2016 to 31 December 2016 be removed from his record. 2. The Board reviewed Petitioner's allegations of error and injustice on 13 August 2019 and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence of record. As noted below, the Executive Director believes, contrary to the Board, that relief is appropriate. Documentary material considered by the Board consisted of Petitioner's application together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies, as well as the enclosed 18 June 2018 advisory opinion (AO) from the Marine Corps Performance Evaluation Review Board (PERB). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found that, before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. BOARD CONCLUSION: The Board determined that the evidence was insufficient to establish the existence of probable material error or injustice. The Board considered Petitioner's request to remove from his record his annual (AN) fitness report for the reporting period 1 April 2015 to 31 May 2016, his change of reporting senior (CH) fitness report for the reporting period I June 2016 to 31 December 2016, and his failure of selection (FOS) to the grade of major (Maj)/0-4. Regarding the AN report ending 31 May 2016, the Board considered Petitioner's contentions that his attribute trait marks in Sections D through H-and his reporting senior's (RS's) Section I comments-were biased and did not accurately reflect his performance, as evidenced by his reviewing officer's (RO's) non-concurrence with his RS's marks and evaluation, and his RS's relief for cause as Petitioner's commanding officer. Regarding the report ending 31 December 2016, the Board considered Petitioner's contentions that his new RS, for part of the reporting period, was still assigned to the 6th Marine Corps District Training Team and did not account for that period of non-availability in the report, thus presenting a "false" period of observation, and that the report does not contain the required Section K comments that indicate the reporting chain had been modified due to the RS's relief for cause. Lastly, the Board considered Petitioner's assertions that his FOS to the grade of Maj/0-4 resulted from error and bias, and that the two contested reports and the limited RS profiles of his reports have presented low relative values that are not commensurate with his performance. The Board, however, concurred with the AO that both fitness reports are administratively and procedurally correct as written and filed, and that their removal, and the removal of Petitioner' s FOS, is unwarranted. Regarding the AN report ending 31 May 2016, the Board agreed with the AO that Petitioner is best served by retaining the report as filed to show that his RO non-concurred with the RS. The Board noted that, in Section K-4, Petitioner' s RO presented a commendatory account of Petitioner's overall performance to demonstrate that he recognized that Petitioner performed extremely well in an ''unknown and demanding environment." Regarding the CH report ending 31 December 2016, and despite the RO's advocacy letter, the Board again concurred with the AO. The Board noted specifically that Petitioner's new RS's duty assignment as shown in Section A, Item lOf, of the contested report, reflects "Commanding Officer," and that, even if the observation period were reduced to account for the RS's period of non-availability, the observation period would still be more than 90 days, requiring submission of an observed report. The Board also noted that Petitioner's RO concurred with the RS's evaluation and thus implicitly determined that the report accurately reflected the RS's period of observation. In any event, the Board determined that, in the circumstances, the report's failure to reflect the RS ' s period of non-availability constitutes harmless error. Likewise, in the circumstances, the Board determined that the absence of a Section K comment indicating that the reporting chain had been modified due to previous RS's relief for cause is not a material error. The Board concluded that, because removal or modification of the contested reports is not warranted, removal of your FOS to the grade of major is also not warranted. In view of the above, the Board recommended the following corrective action. BOARD RECOMMENDATION: That Petitioner's request for correction to his record be denied, and that no corrective action be taken. EXECUTIVE DIRECTOR CONCLUSION: Taking into account the findings of the Board, the Executive Director found that partial corrective action is nevertheless warranted in Petitioner's case, in consideration of reference (b). Like the Board, the Executive Director concurred with the PERB' s implicit finding that the attribute trait marks in Sections D through H-and the RS's Section I comments-in Petitioner's AN report ending 31 May 2016 were in error or unjust because they were biased and did not accurately reflect his perfonnance, as evidenced by his RO's non-concurrence with the RS's marks and evaluation, and his RS's relief for cause as Petitioner's CO. The Executive Director disagreed, however, with the Board's concurrence with the PERB's determination that, despite such error or injustice, Petitioner is "best served by retaining the report as filed to show that his RO non-concurred with the RS." Having implicitly found that the report's attribute trait marks and RS's comments constitute material error or injustice, the Board must correct such error or remove such injustice. See Hase/wander v. McHugh, 774 F.3d 990,996 (D.C. Cir. 2014) ("[W]hen a [ military records] correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its [statutory] mandate [ under 10 U.S.C. § 1552]. And such a violation, contrary to the evidence, is arbitrary and capricious.") (quoting Yee v. United States, 206 Ct.Cl. 388,512 F.2d 1383, 1387 (Ct.Cl.1975)); Wolfe v. Marsh, 835 F.2d 354, 358 (D.C. Cir. 1987) ("[T]he Correction Board's failure to so exercise its discretion, when properly called upon to do so, is subject to judicial review for arbitrariness and capriciousness."). Accordingly, the Executive Director concluded, based on the RO's non­concurrence and his advocacy letter, that Sections D through I of the AN report ending 31 May 2016 constitute material error or injustice warranting their removal. The Executive Director concurred with the Board's findings and recommendation concerning the CH report ending 31 December 2016. Contrary to the Board, the Executive Director concluded that, because modification of the AN report ending 31 May 2016 is warranted, removal of Petitioner' s FOS to the grade of major is also warranted. In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: That Sections D through I of Petitioner' s AN report ending 31 May 2016 be removed. That Petitioner's failure of selection to the grade of major/0-4 be removed. That no further corrective action be taken. 4. It is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above-entitled matter.