Docket No. 5230-19
Ref: Signature Date


Dear : 
 
This 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 21 July 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 2 May 2019 advisory opinion (AO), as well as your rebuttal. 
 
The Board carefully considered your request to modify or replace your fitness reports for the reporting periods 11 July 2009 to 31 May 2010 and 1 June 2010 to 31 May 2011.  The Board considered your contentions that you should have had a U.S. Marine Corps officer serve as your reviewing officer (RO) on these two fitness reports, and that these fitness reports were marginalized by promotional boards for lacking a senior Marine officer's review.  You also contend that the reports should be removed or replaced due to failure to comply with MCO 1520.11F.  
 
You assert that, after considerable effort, you located the Marine Corps officers that purportedly should have been your ROs, and that both officers furnished an advocacy letter with their proposed RO comments to replace the current RO comments.  You also assert that the two officers who furnished advocacy letters were available to serve as your RO and they had personal contact and observation of you during the respective reporting periods.  

The Board, however, substantially concurred with the AO.  The AO noted that you did not furnish evidence that the reports contain any errors, inaccuracies or otherwise conflict with established Performance Evaluation System (PES) manual guidance.  The AO also noted that the attachés correctly performed their administrative roles and responsibilities as Senior Marine Representatives (SMRs), and at processing, neither of the SMRs chose to make any additional comments on their respective report addendum pages.  Additionally, the fitness reports are accompanied by fully-informed and complementary Australian Army Officer Performance Appraisal Reports.  The Board thus determined that your contention that the reports are “marginalized by promotion boards” is speculative and lacks any supporting evidence.  
 
With regard to your contention that the reports are invalid because of conflated guidance set forth in MCO 1520.11F, the AO determined, and the Board concurred, that this contention lacks merit because the Order in no way supersedes PES Manual guidance.  Specifically, PES Manual guidance fully recognizes reporting situations that do not include a Marine in the reporting chain and the detailed provisions for a SMR are intended to account for these scenarios.  
 
The reports were processed by your direct operational supervisory chain, who closely observed you for two years.  The only performance evaluation equivalent missing was the RO comparative assessment marking, as is the case for foreign officers, and that omission does not invalidate the reports.  Lastly, the Board concurred with the AO that, if the pertaining Personnel Exchange Policy (PEP) policy was to have a Marine as the RO, then the respective attachés should have conformed to the policy in 2010 and 2011. 
 
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 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 attachés 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,

9/8/2020

Deputy Director