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

Docket No: 8233-18 
Ref: Signature date

Dear	:

This letter 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied.

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.

A three-member panel of the Board, sitting in executive session, considered your application on 22 October 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, as well as the 31 July 2018 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB). The AO was provided to you on 31 July 2018, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration.

The Board carefully considered your request to remove or modify your fitness report for the reporting period 6 December 2016 to 30 April 2017. The Board considered your contentions that the attribute marks are not reflective of your performance and the drop in marks was due to prejudice that resulted during a command investigation that had not yet been adjudicated and was later proven to be unfounded at a Board of Inquiry (BOI). You also contend that the report was extended for 71 days after you departed the command, that the reporting officials had minimal contact with you, that you were never counseled on a drop in performance, and that you were not permitted to submit a rebuttal to the report.

As part of the review process, the PERP reviewed your request and provided the AO to the Board. The Board substantially concurred with the AO that the contested report is administratively and procedurally correct. In this regard, the Board noted that you were the subject of a command investigation for violations of the Uniformed Code of Military Justice (UCMJ) to include fraternization, which the BOI substantiated but recommended that you should be retained. The Board also noted that although the BOI substantiated the violation of fraternization, the contested report does not contain any adverse marks and the Board found no indication that the report was used as an attempt to negatively affect your career.

Concerning your contention that the attribute marks are not reflective of your performance and there was a drop in marks, the Board noted that the Reporting Senior (RS) for the contested report is not the same RS as your previous report. Accordingly, the Board determined that there is no basis for your contention that your marks were dropped due to prejudice. The Board also noted that the Reviewing Officer (RO) is the same RO from two previous reporting periods during which your comparative assessment mark dropped from the fifth block to the third block. The Board determined that the RO’s unjustified drop in your comparative assessment is an error; however, in and of itself is not justification for removal of the report.

Concerning your contention that you were not permitted to submit a rebuttal, in accordance with the Performance Evaluation System Manual, Marines receiving adverse fitness reports are afforded the opportunity to submit a rebuttal. Your contested report is not adverse; accordingly the opportunity to submit a rebuttal is not authorized.

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 the 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,