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

Docket No: 3470-19 
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 21 April 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 5 March 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 1 April 2016 to 31 August 2016.  The Board considered your contention that, although the report is adverse, there are no derogatory documents in your official military personnel file (OMPF) to justify an adverse report. 

The Board noted that Section A, Items 5a and 6a are marked adverse due to derogatory material issued to you during the reporting period.  Your reporting senior (RS) gave you an adverse attribute mark for “setting the example” and noted that you “received a 6105 for absence without leave on 19 May 2016,” that you “also had several documented mentor/SNCOIC counselings prior to the 6105 for the same offense,”and that you “set a poor example for [your] Marines due to these infractions.” You acknowledged (signed) the report and chose not to make a statement.  Your reviewing officer concurred with your RS’s assessment and marks, and the third officer sighter (3OS) determined that the report contained no conflicting statements. 

The Board substantially concurred with the AO that you have not shown by a preponderance of evidence probable material error, substantive inaccuracy, or injustice warranting removal of the fitness report. In this regard, the AO noted that, while your contention that the derogatory material is not currently resident in your OMPF is accurate, it does not invalidate the report as written. The AO acknowledged that, pursuant to MCO 1610.7, all 6105 counseling documents should be submitted to the Marine's OMPF, but that this guidance is not necessarily binding for PERB purposes, and that the specific adverse instance purportedly covered in the 6105 entry, and as referenced in the report, is corroborated by your RS, RO and 3OS.
  
The Board also concurred with the AO that, although you contend that reported derogatory material considered as adverse is not resident in your OMPF, you did not contend that the incident specified in the report did not occur, and by indicating that you had “no statement to make,” the inference is that the report was accurate at submission, and remains so, absent the 6105 entry posting to your OMPF. Additionally, you were afforded your due process right to comment on the adverse nature of the report prior to its insertion into your OMPF, but chose not to. 

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,