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

Docket No: 4147-19 
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. 

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 2 June 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, as well as applicable statutes, regulations, and policies.  The Board also considered the enclosed 18 September 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 modify your fitness reports for the reporting periods 1 November 2011 to 30 April 2012, 1 May 2012 to 21 May 2012, and 22 May 2012 to 13 July 2012.  The Board considered your contentions that your reviewing officer (RO) comparative assessment in the three reports represent a drop in performance, in violation of MCO 1610.7A.  The Board also considered your contention that, for these reports, your reporting senior (RS) marks show an increase in performance and that all Section K comments and his assessment of performance and potential for promotion indicate no drop in performance, but rather the opposite.  You also contend that the deviation from the Performance Evaluation System (PES) manual and the inconsistency from the comparative assessment and the Section K comments have unfairly characterized your performance and service. 

The Board, however, substantially concurred with the AO.  The AO noted that, without pertinent RO input, any consideration of RO intent and comparative assessment vetting is virtually speculative.  From a strictly RS attribute marking standpoint, which your contention is focused, the fact that the report average of 2.86 on the prior report as compared to the 2.93 on the report ending 30 April 2012 could indicate constant performance or a very slight improvement. 

The AO noted that other factors weigh in to an RO’s subsequent comparative assessment marking, chief among them is continued observation and evolving evaluation thereof.  In this particular case, the report ending 30 April 2012 reflects that you were filling a different billet, which could sway the RO relative evaluation.  The report ending 30 April 2012 encompassed your performance in a combat environment, whereas the previous report did not.  The striking contrast in the Section I and Section K comments between the two compared reports indicates a sea change in the same RS and RO evaluation and report narrative.  The fact that the RO extended his evaluation on the report ending 21 May 2012, and then continued the ‘3’ block comparative assessment into the next report, indicates the alteration was consciously arrived at, even if there is not verifiable justification provided. 

The Board concurred with the AO that the PES manual does not require an RO to specifically justify a change in the comparative assessment marking on subsequent evaluations of the same MRO.  In fact, the report immediately following the report ending 13 July 2012, in which you were serving in a different billet under the same RO, resulted in an increase to the comparative. 

The Board thus determined that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting modification of the contested fitness reports. 

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,