DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10738-19 Ref: Signature Date This 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. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 17 March 2020. 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. The Board also considered the enclosed 29 August 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), as well as your 12 March 2020 rebuttal. The Board carefully considered your request to remove your “from temporary duty” (FD) fitness report for the reporting period 1 July 2012 to 31 May 2013. The Board noted that you were assigned to temporary duty with on 1 July 2012, and that you deployed with to on or about 12 October 2012 and performed duties as the Regimental Judge Advocate. Additionally, on or about 26 January 2013, you received a Red Cross message and immediately redeployed to address a family emergency, while remaining administratively attached to until 31 May 2013. You contend that, although the reporting period was for 12 months (the Board noted that the reporting period was 11 months), the actual observation time during the reporting period was less than four months, and your RS failed to account for almost eight months of totally unobserved time. The Board, however, substantially concurred with the AO, noting that the PERB determined that Section I (directed and additional comments) contained a correctable administrative error, and that the Marine Corps’ course of action was to insert the following comment in Section I: “Directed Comment: Period of non-availability from 20130126 to 20130531 due to separation of MRO from RS.” In your rebuttal, you contend that the PERB’s remedy is inaccurate and unjust, and that your RS committed legal error in processing the fitness report by offering an observed fitness report for a time period without the requisite observation time. The Board concluded, however, that the lack of a directed comment was in error, but the error was corrected by the PERB. You also claim that this error is material, substantive and no doubt had a detrimental impact on any potential promotion to lieutenant colonel or selection for command. Although you assert that for the period from 1 July 2012 through mid- to late-September there was “little to no observation time by the RS,” “with the exception of weekly updates on the possible deployment date,” the Board determined that there were no periods of non-availability requiring a directed comment that occurred prior to 26 January 2013. The Board noted, however, that pursuant to MCO P1610.7F, your RS was required to submit an observed report because your temporary duty assignment lasted longer than 31 days, even when accounting for your period of non-availability. The Board determined that your assertion of the “detrimental impact” on your career as a result of not documenting the period of non-availability in Section I is speculative. Regarding your contention that your RS improperly calculated the markings by gaming the relative value of O4 fitness reports, the Board substantially concurred with the AO that you failed to provide any evidence to support your contention of gaming by the RS. The Board concurred with the AO that the perceived competitiveness of a report’s relative value or comparative assessment mark is not a basis for removing or modifying the report, and the fact that your RS graded other majors higher than you does not necessarily constitute error or injustice. In your rebuttal, you allege that your report was unjustifiably marked lower and severely diluted the value of your record as a whole, and that it was either purposely written to subvert the performance evaluation system (PES), or that your RS was so derelict in his duties that he had no concept of his professional responsibility when writing the report. The Board noted, however, that there is no evidence in the record, and you furnished none, to substantiate your contention that your report was unjustifiably marked lower, that your RS purposely subverted the PES, or that your RS was derelict in his duties and had no concept of his professional responsibilities. Regarding your contention that the report is adverse in nature, the Board agreed with the AO that the phrases are not adverse, and the report is not adverse. The Board also noted that your report was screened by Headquarters Marine Corps (MMRP-30) at processing in 2013, and again in conjunction with deliberations related to your petition to this Board, and the contested phrases and marks were deemed acceptable and not adverse. The Board determined that your assertion that this report guaranteed your non-selection and is career-ending is also speculative. Regarding your contention that your RS never counseled you, the Board again substantially concurred with the AO, noting that relief is not generally granted on the basis of alleged lack of counseling, as counseling takes many forms. Additionally, MCO P1610.7F did not require your RS to formally counsel you in conjunction with the fitness report processing, and the lack of formal counseling does not invalidate the report. In view of the foregoing, the Board concluded that you failed to meet the burden of proof necessary to establish that the report is not an accurate portrayal of your performance and accomplishments during the reporting period. The Board thus concluded that there is no probable material error or injustice warranting corrective action. 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 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, 3/26/2020