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

Docket No: 4472-19 
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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

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, as well as the enclosed 10 April 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB).  The AO was provided to you on 10 April 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 3 January 2018 to 13 June 2018. The Board considered your contentions that: (1) your fitness report is based on actions that were not proven through legal proceedings; (2) your performance related relief contradicts your billet accomplishments; (3) the justification for Section E (Courage), Section F (Setting the Example), and Section K.4 (Reviewing Officer comments) refer to accusations that were part of an ongoing investigation; (4) the Third Officer Sighter’s (TOS) comment referencing acommand investigation violated Marine Corps Order (MCO) 1610.7A, the Marine Corps Performance Evaluation Systems (PES) Manual; and (5) there is no proof of an official counseling in your record, and you were not charged with a violation of the Uniform Code of Military Justice (UCMJ). 

The Board, however, substantially concurred with the AO that your fitness report is valid and should be retained as filed.  In this regard, the Board noted that your fitness report was marked adverse for the attributes: Performance, Courage, Setting the Example, and Decision Making.  The Board also noted that your reporting senior (RS) provided justification for each adverse mark, your reviewing officer (RO) concurred with your RS, and the TOS adjudicated the factual differences of your report. 

Concerning your contention that legal proceedings did not occur and you were not charged with a violation of the UCMJ, the Board determined that legal proceedings, nor UCMJ violations are required for the submission of an adverse fitness report.  Regarding the contradictions between your billet accomplishments and your performance related relief, the Board noted your billet accomplishments, however, the Board determined that your four adverse attribute marks and associated narratives provided context that supports your RS’s adverse assessment of your performance.  Regarding your contention of an ongoing investigation, the Board found no evidence of an investigation, but did note the TOS’s comment that he reviewed the related command investigation.  The Board thus determined that the TOS’s reference to a command investigation pertained to a completed process and did not violate the PES Manual.
 
Concerning your contention that there is no proof of an official counseling in your record, the Board noted that your contention has merit.  The AO noted that a review of your Official Military Personnel File failed to uncover any evidence of a Page 11 entry related to your period of performance.  The Board, however, concurred with the AO that the absence of the Page 11 entry does not invalidate your report or the underlying causal factors related to your relief for cause.  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. 

Sincerely,