DEPARTMENT OF THE NAVY 

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

 
Docket No: 315-19 
Ref: Signature Date 



Dear 
This is in reference to your application for correction of your naval record pursuant to the 
provisions of Title 10, United States Code, Section 1552. After careful and conscientious 
consideration of the entire record, the 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 for Correction of Naval Records, sitting in executive session, 
considered your application on 6 February 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, and 
applicable statutes, regulations, and policies. The enclosed  December 2018 advisory opinion 
(AO) from the Marine Corps Performance Evaluation Review Board (PERB) dated  December 
2018 was sent to you for an opportunity to comment prior to being considered by the Board. 
After the period for comment expired without a response, the case was presented to the Board. 

Regarding your request for a personal appearance, the Board determined that a personal 
appearance with or without counsel will not materially add to their understanding of the issues 
involved. Therefore, the Board determined that a personal appearance was not necessary and 
considered your case based on the evidence of record. 

The Board carefully considered your desire to remove or modify your fitness report (FITREP) 
for the reporting period  June 2013 to  September 2013. The Board considered your 
contentions that (1) you received an adverse FITREP without being provided the mandatory 
associated rights; (2) the Reporting Senior (RS) for the previous FITREP is the same for the 
contested FITREP but the relative value of the contested report is significantly lower; (3) both 
Sections I and K comments from your RS and RO contain “velvet dagger” language 
(specifically, Section I fails to provide advice on promotion, and Section K states that you are 
“currently ranked as my number six of seven captains and has made an invaluable contribution in 
a demanding legal trial billet. His relative ranking is a reflection of the keen competition among 
the captains that make up my RO profile”; and (4) both the RS and RO failed to provide you 
with counseling as required by MCO Pl610.7F. The Board, however, substantially concurred 
with the comments and recommendation in the AO. 

With respect to your first contention, that you received an adverse FITREP without being 
provided the mandatory associated rights, the Board noted that the Performance Evaluation 
System (PES) does not require the Marine Reported On (MRO) to certify a report, nor does it 
mandate that the MRO review and comment on the report, unless the report is a substantiated 
adverse report. Here, the FITREP at issue is not a substantiated adverse report. Furthermore, the 
Board noted that the contested report is not marked adverse in Section A, Item 5a 

With respect to your second contention, that the RS for the previous FITREP is the same as for 
the contested FITREP, thus rendering your FITREP adverse, the Board noted that the AO 
correctly opined that the fact that a particular FITREP may reduce an MRO’s competitiveness is 
irrelevant in determining the adverse nature of such a report. 

With respect to your third contention, that Sections I and K of your report contain “velvet 
dagger” language, the Board concurred with the opinion of the AO that, concerning Section I, 
there is no requirement for a comment in that section, and, concerning Section K, the Board was 
satisfied that the Marine Corps had removed the ranking language from the sentence of which 
you complain, thus providing you partial relief. 

Your final contention is that your RS and RO failed to provide you counseling. The Board 
agreed with the AO, which found that there is no requirement for formal counseling with respect 
to a FITREP, and the lack of formal counseling does not invalidate a report. 

In view of all of the foregoing, the Board concluded that the evidence, including the evidence 
you provided with your application, is insufficient to show the existence of probable material 
error or injustice warranting removal of or modification to the report. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken 
at this time. You are entitled to have the Board reconsider its decision upon the submission of 
new and material evidence. New evidence is evidence not previously 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, 

4/11/2019