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

Docket No: 1877-19 
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 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 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 30 January 2019 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 November 2014 to 8 July 2015.  The Board considered your contention that your reporting senior (RS) used the fitness report as a disciplinary tool, that your RS mentioned unverified accusations from a command investigation (CI), and that the Performance Evaluation System (PES) Manual requires RSs to ensure that derogatory material is an incontrovertible matter of fact.
 
The Board, however, substantially concurred with the PERB in regards to your contention that your RS used the fitness report as a disciplinary tool.  The AO determined that the report does not contain any overt reference to the CI, that neither Item 6b (Derogatory Material) nor Item 6c (Disciplinary Action) were checked, and that your reporting officials were within their discretionary authority to utilize the underlying substantiated findings from the CI in your performance evaluation. 

With regard to your contention that your RS mentioned unverified accusations from a CI, and that the PES Manual requires RSs to ensure that the derogatory material is an incontrovertible matter of fact, the Board, again, substantially concurred with the AO that your RS’s comments are in accordance with the PES Manual.  The Board noted that, in the opinion of the investigating officer (IO), allegations of sexual harassment were substantiated.  The Commanding General, , however, disapproved the IO’s opinion of sexual harassment, but endorsed the remaining findings of fact that include multiple instances of your questionable behavior.  The Board also noted that your RS did not comment on any allegations of sexual harassment, but he did note that your actions during the reporting period were not commensurate with the actions expected of an officer of Marines.
 
The Board determined that your RS’s comments were based, in part, on the findings and opinions that were later endorsed by the Commanding General, III Marine Expeditionary Force.  Your RO also commented that “these substantiated allegations” of misconduct are both relevant and meaningful to your overall performance as a Marine and should be documented in your performance record. Additionally, your RO noted “I have assessed that MRO’s actions deviated considerably from basic Marine Corps leadership principles, well known to a Marine of his rank and experience, and that the deficiencies in his performance merit reporting via the Performance Evaluation System.” Your Third Officer Sighter/General Officer Sighter subsequently reviewed the report and adjudicated any factual differences, noting that you were interviewed by the IO and had the opportunity to rebut each allegation, provide a rebuttal to each allegation in a written statement, and that your interview and statement were considered by commanders in their review of the investigation. 

The Board thus determined that the report was administratively correct, procedurally complete and valid at the time of submission, and remains as such.  The PERB determined, and the Board concurred, 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,