DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 8549-18 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 1610.7A (c) MCO P1610.7F Encl: (1) DD Form 149 w/enclosures (2) Fitness Report for the reporting period 14 Jan 08 to 9 May 08 (3) HQMC memo 1610 MMRP-13/PERB of 12 Jul 18 (4) Fitness Report for the reporting period 6 Jun 02 to 31 Jul 02 (5) Fitness Report for the reporting period 1 Nov 17 to 13 Jan 08 (6) CMC ltr 1610 MMRP-13/PERB of 9 Jul 18 (7) CMC ltr 1610 MMRP-13/PERB of 9 Jul 18 (8) HQMC memo 1610 MMRP-50 of 18 Jul 18 1. Pursuant to the provisions of reference (a), Petitioner, a commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his fitness report for the reporting period 14 January 2008 to 9 May 2008 and his failures of selection to lieutenant colonel. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 10 September 2019 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record 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. Petitioner was issued enclosure (2), a from temporary duty (FD) fitness report for the reporting period 14 January 2008 to 9 May 2008. Petitioner contends that Sections I and K of the report contain comments that are adverse in nature and that suggest that he was relieved of his duties, but the report was not marked adverse and he did not receive any counselings for performance deficiencies during the reporting period. The Marine Corps Performance Evaluation Review Board (PERB) determined that the Section I and K comments were in violation of reference (b), but were not significant enough to warrant removal of the entire report, especially in light of the report’s “combat” nature. The PERB’s course of action was to remove the following verbiage from Section I (Directed and Additional Comments): “Resigned to fulfill the duties of the billet assigned to him,” and “CO, I MHG has made the determination to release SNM from his duties and send him back to his parent command currently deployed to allowing him to finish up his deployment with them.” The PERB also removed the following from Section K-4 (Reviewing Officer Comments): “I chose to return the MRO to his parent command to complete his deployment with them” The PERB recommends that the report, as modified, remain in Petitioner’s OMPF. c. Petitioner was issued enclosures (4) and (5), a change of reporting senior (CH) fitness report and a to temporary duty (TD) fitness report, respectively. Petitioner had requested these reports be modified to “Not Observed” reports due to insufficient observation and the lack of a directed comment invoking an exception to policy for writing observed reports that have less than 90 days observation period. The Board noted that, per the AOs at enclosures (6) and (7), the PERB determined that these two reports did not comply with the requirements of reference (c), and therefore, modified both reports from “Observed” to “Not Observed” reports. d. Petitioner failed selection by the fiscal year (FY) 2019 and FY 2020 USMC Lieutenant Colonel Promotion Selection Boards. According to Headquarters, Marine Corps (MMRP-50), enclosure (8), these promotion boards were not presented with an accurate representation of Petitioner’s performance or potential due to adverse language by both reporting officials on the report at enclosure (2), and by Petitioner’s reporting seniors on the reports at enclosures (4) and (5). MMRP-50 determined that the promotion selection boards may have construed the FD report as adverse and indicative of a relief of duties. Additionally, prior to the modifications made by the PERB, the relative values generated from the CH and TD reports were represented in cumulative second lieutenant and captain in-grade values, as well as cumulative totals across all grades. Thus, MMRP-50, in light of the substantive modifications made by the PERB, recommended that Petitioner’s failures of section be removed. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants partial relief. In this regard, the Board noted that the PERB modified Petitioner’s contested CH and TD reports from “Observed” to “Not Observed.” The Board concluded that no further corrective action was required for these reports. The Board also noted that the PERB modified Petitioner’s FD report by removing adverse verbiage. The Board, however, concurred with the AO that the modifications were not significant enough to warrant removal of the entire report. The Board thus concluded that Petitioner’s FD report, as modified by the PERB, shall remain in his record. With regard to Petitioner’s request to remove his failures of selection, the Board concurred with MMRP-50. Specifically, the Board determined that the promotion selection boards were not presented with an accurate representation of Petitioner’s performance due to errors in his fitness reports. Further, the Board determined that Petitioner was at a substantial disadvantage due to his above-the-zone status when considered by the FY 2020 promotion selection board. The Board concluded that Petitioner’s FY 2019 and FY 2020 failures of selection shall be removed from his record. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by removing his failure of selection incurred by the FY 2019 USMC Lieutenant Colonel Promotion Selection Board. Petitioner’s naval record be corrected by removing his failure of selection incurred by the FY 2020 USMC Lieutenant Colonel Promotion Selection Board. Petitioner's naval record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to lieutenant colonel as an officer who has not failed of selection for promotion to that grade. No further relief be granted. 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. Sincerely, 11/7/2019