Dear : 
 
This letter is in reference to your reconsideration request dated 9 May 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the 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 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. 
 
Your request has been carefully examined by a three-member panel of the Board, sitting in executive session on 14 July 2020.  The names and votes of the members of the panel will be furnished upon request.  Documentary material considered by the Board consisted of your application and the matters submitted in support of your application.  The Board also considered the 4 November 2015 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you. 
 
The Board carefully considered your request to remove your fitness reports for the reporting periods 2 May 2012 to 7 July 2012 and 8 July 2012 to 18 August 2012; alternatively, you request to modify them to reflect “Not Observed” reports.  The Board also considered your request to remove your failures of selection (FOSs), and to grant the convening of a special selection board (SSB). 
 
The Board considered your contention that the 20 February 2013 Headquarters Marine Corps (MMSB) Position Paper found significant differences between the ratings awarded to permanent personnel assigned to the Marine Corps Officer Candidate School and those awarded to augment (temporary) personnel, despite actual performance.  The Board also considered your contention that your contested fitness reports reflect actual bias because they are lower third reports and the verbiage gives no indication of deficient performance, and that your documented performance is inconsistent with the relative value ratings and cumulative relative value. 
 
The Board noted, however, that the applicable policy at the time the reports were written, MCO P1610.7F (w/Ch 1 & 2), allowed for reporting seniors (RSs) to submit an observed report if in their judgement, they possessed sufficient observation, if the basis of the observation resulted from meaningful personal contact with the Marine Reported On (MRO), if the information provided to the Commandant of the Marine Corps was significant and provided a fair assessment of the MRO, and providing that the RS indicated in Section I that an exception to policy was being invoked.  The Order also recognized that Not Observed reports diminish the amount of useful information in a Marine’s performance record. 
 
With regard to your contested fitness report ending 7 July 2012, the Board noted that your RS made comments in Section I that indicate that he felt justified in rendering the report observed, and the fact that your RS did not indicate in Section I that an exception to policy was being invoked was a harmless administrative error that does not invalidate the report.  The Board also noted that, for your contested report ending 8 August 2012, your RS not only indicated in Section I that he was invoking an exception to policy, he specifically stated that he “had sufficient observation . . .”   Your reviewing officers (ROs) concurred with the respective RSs’ evaluation and indicated that their observation of you during the respective reporting period was sufficient for an observed report. 
 
The Board determined that there is no indication that the reports are anything other than a fair evaluation of your demonstrated performance and accomplishments during the reporting period.  Moreover, the Board noted that the perceived competitiveness of a report’s relative value is not a basis for removing or modifying a fitness report. 
 
With regard to your request for removal of your FOSs and the convening of an SSB, the Board noted that without the removal or modification of your contested fitness reports, you have not demonstrated probable material error or injustice warranting corrective action. 
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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