DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6669-18 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 100 l.65 (c) MCO 1610.7A (PES) Encl: (1) DD Form 149 w/attachment (2) CMC memo 1610 MMRP-13/PERB of 12 Jul 18 1. Pursuant to the provisions of reference ( a), Petitioner, a commissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting that his transfer (TR) fitness report for the reporting period 20 August 2010 to 4 April 2011 be removed from his record. 2. The Board reviewed Petitioner's allegations of error and injustice on 9 July 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 12 July 2018 advisory opinion (AO) from the Marine Corps Perfonnance Evaluation Review Board (PERB). 3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b.The Board considered Petitioner's request to remove his fitness report for the reporting period 20 August 2010 to 4 April 2011. The Board considered his contention that, during the reporting period, he was a Student Judge Advocate and had not yet attended The Basic School or the Naval Justice School (his primary military occupational specialty (PMOS) school), and was not yet a licensed attorney. The Board also considered Petitioner's contention that, because he was not yet a licensed attorney and had not completed his PMOS school, he was limited to administrative and supporting assignments, which prevented him from demonstrating his abilities, and that his reporting senior marked him lower than his licensed peers in an effort to "build [the RS's] profile and assist the other fully trained first lieutenants in receiving a higher relative value." BOARD CONCLUSION: The Board determined that the evidence was insufficient to establish the existence of probable material error or injustice. The Board substantially concurred with the AO that the contested report is procedurally correct, but does contain a correctable administrative error. In particular, the Board noted that, in accordance with paragraph 4e(l) of reference (b ), "observed time begins with the first observed performance evaluation after graduation from the [PMOS] school." Because Petitioner had not yet graduated from PMOS school, the Board concurred with the PERB that modification of his report by changing Section A, Item 3c (Type) from "N" (normal) to "A" (academic) was warranted. The Board further determined, however, that removal of the report, or changing it to a not-observed report, was not warranted. The Board concluded, therefore, that the contested report does not constitute probable material error or injustice, and that further corrective action is not warranted. In view of the above, the Board recommended the following corrective action. BOARD RECOMMENDATION: That Petitioner's request for additional correction to his record be denied, and that no further corrective action be taken. EXECUTIVE DIRECTOR CONCLUSION: Taking into account the findings of the Board, the Executive Director found that corrective action is nevertheless warranted in Petitioner's case, in consideration of references (b) and ( c). The Executive Director noted that the report's reviewing officials and the PERB ignored the plain language of paragraph 4e(l) of reference (b), which provides that "observed time begins with the first observed performance evaluation after graduation from the [PMOS] school." Not only had Petitioner not yet graduated from his PMOS school before the reporting period, he was not even a licensed attorney, and thus his duties were limited in comparison to those of his peers. The Executive Director acknowledged that the PERB's course of action-changing Section A, Item 3c (Type) from "N" (normal) to "A" (academic)-was well intended, aiming to keep Petitioner's RS's and reviewing officer's (RO) laudatory Section I and Section K comments on Petitioner's performance and potential. The Executive Director noted, however, that, by declining to change the report from observed to non-observed, the PERB failed to recognize that the report's very low relative value (that is, the value of the average of the report's attribute marks in relation to the value of the average of the reports for all other officers of the same grade for that RS) will remain in Petitioner's record and continue to hann his competitiveness. Finally, the Executive Director noted that reference (c), the current version of the Marine Corps Performance Evaluation System Manual, was amended in 2018 to address the very circwnstances faced by Petitioner. Reference (c) now expressly provides that not-observed reports are to be submitted for "[ c Jompany grade officers who have not yet completed their primary MOS school." Ref (c), ,r 3-6b(4). The Executive Director acknowledged that, "[aJs an exception, reporting officials may complete observed reports if they deem their observation sufficient enough to warrant an observed report." However, in light of the wide disparity between the report's attribute marks and relative value (placing Petitioner at the bottom of eight first lieutenants) on the one hand, and the RS's and RO's laudatory and superlative description in Sections I and K of his performance and potential, on the other, the Executive Director concluded that maintaining the contested report as an observed report unfairly harms Petitioner's competitiveness and, thus, constitutes an injustice warranting corrective action. In doing so, the Executive Director noted that paragraph 3-6d of reference (c) permits Petitioner's report, even if non-observed, to include the RS's and RO's comments: "To the extent possible, both the RS and the RO may provide comments in sections I and K to better inform promotion and selection boards regarding the performance and potential of the (Marine _ Reported On]." In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: That Petitioner's naval record be corrected by modifying the fitness report for the reporting period 20 August 2010 to 4 April 2011 from "observed" to "not observed" but, per paragraph 3­6d of reference ( c ), the existing Section I and Section K comments be maintained. 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. 5. The foregoing action of the Board is submitted for your review and action.