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 12 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, as well as applicable statutes, regulations, and policies.  The Board also considered the enclosed 28 March 2019 advisory opinion (AO) 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 fitness report for the reporting period 29 November 2007 to 11 February 2008.  The Board considered your contentions that the report was submitted late, that your reporting senior’s (RS’s) Section I comments are not in line with his profile markings, that you were never counseled or received a copy of your RS’s markings, and that meaningful contact was never established between you and your RS during the reporting period.  You also contend that the fitness report was for a 74 day period that spanned the Christmas and New Year break, and due to your unit’s 20-day block leave from 18 December 2007 to 5 January 2008, the actual period of observation was only 54 days.  You assert that this was the first fitness report written by your RS for first lieutenants, and that his subsequent markings have placed this fitness report as the bottom of five reports. 
 
The Board, however, substantially concurred with the AO.  The AO noted that your RS invoked an exception to policy via a Section I Directed Comment, specifically stating that he “gained meaningful personal contact” with you during the reporting period.  The Board also noted that the contested report does not contain any Section I comment annotating periods of non-availability.  The Board determined that being at the bottom of your RS’s profile, the lack of counseling, and the untimely submission of the report do not constitute grounds for modification of the contested report.  Finally, the PERB determined, and the Board agreed, that the there is no scale to “match” comments and markings in Performance Evaluation System (PES) guidance.  The Board concluded that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting removal of the report. 
 
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, 
  6/14/2020