DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9309-18 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 Encl:(1) DD Form 149 w/attachments (2) Petitioner's fitness report for the reporting period 1 Mar 16 to 27 Jul 16 (3) PERB memo 1610 MMRP-13/PERB of23 Oct 18 1. Pursuant to the provisions of reference (a), Petitioner, a staff non-commissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting that his naval record be corrected by removing his transfer (TR) fitness report for the reporting period 1 March 2016 to 27 July 2016. 2. The Board reviewed Petitioner's allegations of error and injustice on 19 November 2019 and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence of record. The names and votes of the members of the panel will be furnished upon request. As noted below, the Executive Director believes, contrary to the Board, that partial 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 23 October 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to Petitioner. Although Petitioner was afforded an opportunity to submit a rebuttal, he did not do so. 3. The Board, having reviewed all the facts ofrecord 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. The Board made the following additional findings: a. Petitioner was issued a TR fitness report for the reporting period 1 March 2016 to 27 July 2016. b. In section K3 of the contested fitness report, Petitioner's reviewing officer (RO) marked block two ("A qualified Marine') in the RO's comparative assessment of Petitioner's potential. c. In section K3 of a previous report, in which Petitioner was in the same grade but served in a different duty assignment, the same RO had marked block six ("One of the few exceptionally qualified Marines") in his comparative assessment of Petitioner's potential. d. In his comments in section K3 of the contested report, Petitioner's RO noted, among other things, that Petitioner was "Genuine and capable of meeting expectations when supervised," and he recommended that Petitioner be retained "at the needs of the service." 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 contention that his RO's comments "Genuine and capable of meeting expectations when supervised" and "retention at the needs of the service" are adverse. Petitioner also contends that his RO dropped his comparative assessment mark from block six on a previous report to block two on the contested report, and that Petitioner was not counseled about his performance or expectations for the reporting period. Additionally, Petitioner contends that his billet accomplishments, the Section I comments, and his attribute marks on the contested report are inconsistent. Finally, Petitioner asserts that the report implies that something adverse occurred during the reporting period, and that his billet accomplishments and reporting senior's comments imply that his performance was below average when compared to his peers. The Board, however, substantially concurred with the AO that the contested report is administratively and procedurally correct. In this regard, the Board noted that Petitioner's RO did in fact mark his comparative assessment of Petitioner's potential lower than that of a previous report, but that the reports were not successive, and Petitioner was evaluated on each report for a different duty assignment. The Board determined that the Marine Corps Performance Evaluation (PES) Manual does not prohibit an RO from lowering a comparative assessment mark on a later report. The Board also noted that the drop in the comparative assessment was reflected in your RO's comments, and did not find that the comments were adverse. Moreover, the Board observed that the PES Manual does not require formal counseling, and there is no scale to match attribute marks with Section I comments. The Board thus concluded that there is no probable material error or injustice warranting corrective action. In light of the above, the Board makes the following recommendation: 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 and recommendation of the Board, the Executive Director determined that partial corrective action is nevertheless warranted in Petitioner's case. The Executive Director generally concurred with the Board's findings, conclusions, and recommendation, but determined that Petitioner's fitness report at issue should be modified to remove an adverse comment. Contrary to the PERB and the Board, the Executive Director determined that, for a gunnery sergeant, the RO's comment "capable of meeting expectations when supervised" is adverse, and that its inclusion in the contested report rendered the report adverse, requiring processing in accordance with the procedures set forth in chapter 5 of reference (b ). The Executive Director noted that, according to paragraph 5-ld(4)(k) ofreference (b), adverse comments include comments describing the performance or potential of a Marine Reported On (MRO) that reflect, among other things, "A failure to accomplish job assignments or meet established standards," or "A judgment of his or her inability to cope with increasing MOS and professional responsibilities and assignments." (Paragraph 5-ld(4) provides that the same definition of adversity applies to an RO's section K comments.) In the Executive Director's view, the disputed comment "capable of meeting expectations when supervised" is adverse for a gunnery sergeant because it clearly reflects a failure to accomplish job assignments or meet established standards, or a judgment of his or her inability to cope with increasing MOS and professional responsibilities and assignments. Indeed, the Executive Director noted that the disputed comment is just another way of saying "needs supervision," which is specifically listed in paragraph 5-1 d(7) as a negative phrase to be avoided by reporting officials "unless the intent is to render the report adverse." Because the disputed comment renders the report adverse, and the report was not processed in accordance with the procedures set forth in chapter 5 of reference (b ), the comment should be removed. 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 his TR fitness report for the reporting period 1 March 2016 to 27 July 2016 by removing the phrase "and capable of meeting expectations when supervised" from the RO's Section K comments. 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.