Docket No: 4177-19 
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 that 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 will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

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, as well as the enclosed 28 March 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB).  The AO was provided to you on 28 March 2019, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 

The Board carefully considered your request to remove your fitness report for the reporting period 1 June 2017 to 20 February 2018. The Board considered your contention that your report is factually incorrect in its conclusion that you failed to take timely and effective action against your Marines for using personal electronic devices (PEDs) in the air traffic control (ATC) tower.  You also contend that the fitness report was used as a disciplinary tool in violation of Marine Corps Order (MCO) 1610.7, the Marine Corps Performance Evaluation System (PES) Manual. 

The Board, however, substantially concurred with the AO that your fitness report is valid and shall be retained as filed. The Board found no evidence to support your contentions that your fitness report is factually incorrect and used as disciplinary action, and you provided none.  Your 
reporting senior (RS) marked you adverse for “Performance” and “Judgement” because you failed to take timely and effective action to correct unsafe practices by crews in the ATC tower despite being directly notified of the violations by the Naval Safety Center inspection team.  Further, your RS noted that he relieved you of detachment command and ATC facility officer responsibilities for loss of confidence in your leadership based on his observations and the findings/recommendations of a preliminary inquiry (PI). 

The Board determined that the PES Manual does not require disciplinary action to render a report adverse.  Your reporting officials were within their discretionary authority to utilize the substantiated findings from the PI as a basis for your relief and the adverse nature of the report.  Moreover, the Board noted that the PI documented multiple violations of command directives by your subordinates and affirmed the subsequent action taken by your reporting officials.  The Board thus concluded that there is no probable material error or injustice warranting corrective action. 

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.