DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
             
Docket No: 9575-18                                                           
Ref: Signature Date 

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

A three-member panel of the Board, sitting in executive session, considered your application on 17 December 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, as well as applicable statutes, regulations, and policies.  The Board also considered the enclosed 5 November 2018 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 

The Board carefully considered your request to remove your fitness report for the reporting period 4 August 2017 to 31 March 2018.  The Board considered your contentions that the report was used as a counseling tool by your reporting senior (RS); you were not given the opportunity to correct any deficiencies that were stated in the report; you should have received TD [to temporary duty] and FD [from temporary duty] reports covering the period when you received your 23 March 2018 Administrative Remarks (Page 11) 6105 counseling; and that your 29 March 2018 rebuttal to your 6105 counseling explains the efforts you made to check in from liberty on time.  The Board also considered your contentions that your RS did not observe you during the reporting period, and the report, therefore, should reflect a period of non-availability, or it should have been a period observed by the officer in charge (OIC) of the exercise. 

The Board agreed with your contention that you should have received a TD and FD report covering the period when you received the 6105 counseling, however, your command’s failure to do so does not invalidate the report, nor its adverse nature.  The Board, however, substantially concurred with the PERB that there is no evidence, and you provided none, to substantiate your contention that your RS used the report as a counseling tool.  Further, with regard to your contention that “the RS cannot speak to the circumstances surrounding the 6105 as [your] RS was not observing [you] during this period,” the Board concurred with the AO that your RS did not have to personally observe your behavior or performance in order to reference it in a 6105 counseling, that you and your RS were not required to be co-located in order for observation to occur, and that, in all likelihood, the adversity cited in the 6105 was actually observed (and reported) by your exercise OIC.  The Board thus concluded that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting removal of the report. 

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, 


3/6/2020