DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4161-19 Docket No: 6088-19 Ref: Signature Date This is in reference to your applications 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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to their understanding of the issues involved. The Board therefore determined that a personal appearance was unnecessary and considered your case based on the evidence of record. Although your applications 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 5 May 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 28 March 2019 and 3 June 2019 advisory opinions (AOs) furnished by the Marine Corps Performance Evaluation Review Board (PERB). Although you were afforded an opportunity to submit a rebuttal, you did not do so. The Board carefully considered your request to modify your grade change (GC) fitness report for the reporting period 29 March 2001 to 30 June 2001 to “not observed” and to remove your change of reporting senior (CH) fitness report for the reporting period 2 September 2007 to 15 June 2008. The Board also considered your request to remove your failures of selection to O6. Regarding your contention that your GC fitness report should be “not observed” because your reporting senior (RS) failed to account for periods of non-availability, the Board substantially concurred with the 28 March 2019 AO. The AO noted that the report period covered constituted 94 days, slightly more than the 90-day threshold required for observed reports for a GC occasion. The AO also noted that the Section I comments omit any reference to periods of non-availability, and your documented and perceived non-availability do not meet the definition of non­availability for observation purposes established in the Performance Evaluation System (PES) guidance. Regarding your request to remove your CH fitness report, the Board considered your RS’s advocacy letter and your contention that your RS acknowledged that he lost track of the relative value of the report when grading subsequent Majors. Your RS also asserts that you should have remained in the top two of seven Major reports he graded as your RS. The Board, however, substantially concurred with the 3 June 2019 AO. The AO determined that you failed to provide any evidence that your performance and conduct warranted higher marks than what you received on your fitness report. The AO noted that, in accordance with the PES guidance, a report is not considered unjust solely because the relative value and/or comparative assessment mark are rated lower than other reports. The Board concurred with the AO that your RS’s admitted error does not invalidate the report or justify his attempt to utilize the PERB to reset his dormant profile. The Board thus concluded that the contested reports do not constitute probable material error or injustice warranting corrective action, and that, without such corrective action, removal of your FOSs is unwarranted. 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, 5/26/2020