Docket No: 4158-19 
Ref: Signature Date 


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 30 May 2019 advisory opinion (AO) and another AO (undated) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which were previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
The Board carefully considered your requests to modify your transfer (TR) fitness report for the reporting period 1 November 2005 to 3 February 2006 by changing the comparative assessment from block 4 to block 5 and to modify your TR fitness report for the reporting period 1 June 2009 to 31 August 2009 by changing the comparative assessment from block 5 to block 7. 

The Board considered your contention that, in violation of MCO 1610.7A (PES manual), your comparative assessment was downgraded on your report ending 3 February 2006, without amplifying remarks.  You assert that, during the reporting period, your performance did not downgrade from the previous reporting period, you were nominated and selected to serve as the staff secretary, and that your reviewing officer (RO) comments on both reports are positive and make no mention of any performance shortcomings. The 30 May 2019 AO noted, and the Board concurred, that at the time of report submission, the applicable PES manual policy specifically pertaining to the RO comparative assessment marking differed from later policy, as referenced by you in your petition, in that it did not include the subsequent caveat related to back-to-back reports.  The AO noted that the applicable RO guidance simply states, “mark an ‘X’ in the appropriate block indicating the comparative assessment of the MRO.”  The Board determined that you are essentially arguing to apply current policy retroactively to a report submitted under dated policy that reporting officials fully complied with.  At the time of these reports, your RO had no obligation to mark you with the same comparative assessment marking on back-to-back reports because the policy did not yet exist, or at least was not specified in the applicable PES manual guidance. 

The Board also considered your contention that your RO acknowledges the purported error in his assessment of your report ending 31 August 2009.  The undated AO noted, and the Board concurred, that the latency of the time span between report processing and request for substantive correction degrades its credibility and legitimacy.  The AO noted that, even though the evaluation was in a combat environment, the period covered was three months.  The relative value of 94.53, while at the bottom of the top 1/3 segmentation, does not usually correspond with a ‘7’ block comparative assessment.  Additionally, the AO noted that your request for an increase of two blocks is deemed excessive, and pursuant to the applicable PES manual, “No mechanism exists to ‘reset’ reporting senior profiles.”  By extension, this applies to resetting RO profiles as well. The Board thus determined that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting removal or modification of the 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. 

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