Docket No. 5861-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF USMC Ref: (a) 10 U.S.C. § 1552 (b) MCO P1070.12K W/CH 1 (c) MCO 1610.7 Encl: (1) DD Form 149 w/enclosures (2) Fitness Report for the reporting period 1 Feb 17 to 8 May 17 (3) Administrative Remarks (Page 11) of 8 May 17 (4) HQMC memo 1610 MMRP-13/PERB of 13 May 19 1. Pursuant to reference (a), Petitioner, a commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his fitness report for the reporting period 1 February 2017 to 8 May 2017. 2. The Board reviewed Petitioner’s allegations of error and injustice on 28 July 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Petitioner was issued enclosure (2), a fitness report for the reporting period 1 February 2017 to 8 May 2017. Petitioner’s duty assignment was supply officer. His reporting senior (RS) was the executive officer and his reviewing officer (RO) was the commanding officer. Section A, Item 5.a is marked “Adverse,” Item 6.b is marked “Derogatory Material,” Item F.3, “Setting the Example” is marked “A” and the associated “Justification” reads: “MRO’s Personal actions did not demonstrate the highest standards of conduct, ethical behavior. MRO was relieved for cause.” Item G.3, “Judgment” is marked “A” and the associated “Justification” reads: “A majority of MRO’s judgments were not measured or appropriate, relevant or correct. MRO was relieved for cause.” Section I comments include: “Sect A, Item 6b: MRO was relieved for cause.” Petitioner’s addendum page comments include: “I have been made aware of the allegations against me and take responsibility for my actions. With the benefit of hindsight, I realize now that I made some poor decisions. I fully appreciate and respect my RO’s decision to relieve me for cause.” The third officer sighter (3OS) comments include: “The Commanding Officer relieved MRO for cause – thus making this a performance related matter the current basis for adversity.” c. On 8 May 2017, Petitioner was issued an Administrative Remarks (Page 11) in accordance with paragraph 3005 of reference (b), counseling him regarding the reasons for his relief for cause, including an adverse command climate, and a hostile working environment . . . directly linked to his actions as the officer-in-charge, specifically, his unprofessional conduct. Petitioner acknowledged the entry and chose not to submit a rebuttal. d. Reference (c), the Performance Evaluation System (PES) manual, provides that there are two broad categories of adversity as it relates to fitness reports: conduct-related adversity, and performance-related adversity. Petitioner asserts that, pursuant to reference (c), when a report is adverse due to conduct-related adversity, the RS must not report pending matters” and that conduct based adversity is reported only after the matter is fully adjudicated. Additionally, he asserts that reference (c) provides that performance-related adversity reflects shortcomings in the Marine Reported On’s (MRO’s) performance, and that the RS should specifically describe the MRO’s shortcomings and highlight why the MRO was unable to succeed in their assigned billet. Petitioner asserts that the end date of the reporting period was the day of his relief for cause, and that he was issued the adverse fitness report due to an allegation of misconduct. He asserts that the misconduct allegations which rendered the fitness report adverse were not adjudicated until the date of his Board of Inquiry (BOI), more than five months later. Petitioner contends that in an effort to circumvent the requirement that conduct-related adversity not be reflected in a fitness report prior to final adjudication, his RS decided to call this performance-based adversity, which Petitioner disputes. Petitioner contends that his RS did not comply with the PES manual because none of the directed comments specifically address Petitioner’s shortcomings nor do they highlight why he was unable to succeed in his assigned billet. Thus, if the report is adverse due to his performance, the RS did not comply with the PES manual. Although his RS did state that Petitioner was relieved for cause in Section I, he failed to provide a factual basis in the justification block for each adverse attribute, as required by the PES manual, and provides no factual content and only leaves the reader speculating. e. The Headquarters, Marine Corps, Performance Evaluation Review Board (PERB), having cognizance over Petitioner’s request to remove his fitness report, furnished enclosure (4), an advisory opinion (AO) recommending Petitioner’s request to remove the report be denied. The PERB determined that Petitioner did not demonstrate probable material error, substantive inaccuracy, or injustice warranting removal of the fitness report. The PERB, however, noted that relief for cause is not considered derogatory material and therefore modified the report by removing the mark in Section A, Item 6b (Derogatory Material), and recommended that the report, as modified by the PERB, remain in Petitioner’s official military personnel file (OMPF). The AO determined that, although Petitioner contends that his reporting officials circumvented PES manual guidance by essentially splitting the difference between performance-based and conduct-based adversity, in reality, the reporting chain may have bridged the threshold between the performance and conduct paradigm since Petitioner was subject to a BOI, while simultaneously being relieved for cause for performance. The AO acknowledged that the report does not make mention of any official conduct-based rationale in conjunction with report adversity, and although his RO does mention Petitioner’s conduct in section K comments, his RO did not provide specific justification for the report’s adverse nature. As to Petitioner’s contention that the report is unclear as to the basis of adversity, the PERB determined that the absence of any conduct based justification, and the 3OS clarification that the report’s adversity is performance based, settles that quandary. Furthermore, the report does not reference pending adjudication of alleged misconduct. The AO also noted that Petitioner then shifts to the supposition that the report’s adversity could be performance based after all, but if so, was administratively incorrect due to insufficient factual basis. The AO determined that this contention lacks merit. Although the RS justification entries for the two attribute markings of ‘A’ are less than robust, the PERB determined that they are sufficient enough to support the relief for cause that predicated the marks in the first place. Lastly, the AO noted that Petitioner freely admitted to deficiencies noted in the report and included in his MRO Addendum page comments, “I fully appreciate and respect my RO’s decision to relieve me for cause.” f. In his rebuttal, Petitioner contends that the PERB failed to properly apply the PES manual, and that the remedy the PERB applied is inadequate and incomplete. The PERB directed that the mark in Section A, Item 6b (Derogatory Material), be removed from the fitness report. Petitioner argues that it is not performance-related simply because the 3OS says it is. It must actually be a performance-related adverse report in accordance with the PES manual. Petitioner contends that the report cannot possibly be a performance­related adversity when the RS Section I comments include: “[Petitioner’s] duty as a supply officer and the responsibilities that come with executing a multi-million dollar CMR account were in keeping with the directions and billet description given to MRO by his RS and RO” and his RO commented “[h]is conduct during the reporting period was immature and unprofessional” (emphasis added). Petitioner contends that in writing this, his RO is directly addressing the conduct that was under investigation, and not adjudicated, which is inappropriate and not in compliance with the PES manual because, pursuant to the PES manual, conduct-based adversity is reported only after the matter is fully adjudicated. Petitioner asserts that, as a result of his reporting chain's failure to comply with the PES manual, the fitness report contains material error and injustice warranting removal of the fitness report from his OMPF. CONCLUSION Upon review and consideration of all the evidence of record, and in light of reference (c), the Board determined that Petitioner’s request warrants relief. The Board noted that, pursuant to reference (c), performance-related adversity occurs due to shortcomings within the MRO’s performance, and may include relief for cause. Additionally, the RS is responsible for describing the MRO’s shortcomings and highlighting why the MRO was unable to succeed in their assigned billet. The Board noted, however, that the RS’s justification for the adverse mark in Item F.3, “Setting the Example” and Item G.3, “Judgment” indicate that Petitioner’s conduct was adverse, not his performance, especially considering the RS’s Section I comment that “[Petitioner’s] duty as a supply officer and the responsibilities that come with executing a multi-million dollar CMR account were in keeping with the directions and billet description given to MRO by his RS and RO” and his RO’s comment “[h]is conduct during the reporting period was immature and unprofessional” (emphasis added). Although the 3OS stated that Petitioner’s relief for cause was a performance-related matter and the current basis for adversity, the Board found the report to be ambiguous and even contradictory in some respects to performance based adversity. The Board also determined that it was more likely than not, the adversity of the report was based on Petitioner’s conduct, and pursuant to reference (c), should not have been reported on until after the matter was fully adjudicated. The Board thus concluded that the contested fitness report shall be removed from Petitioner’s OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action: Petitioner’s naval record be corrected by removing enclosure (2), his fitness report for the reporting period 1 February 2017 to 8 May 2017. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 9/24/2020 Assistant General Counsel (Manpower and Reserve Affairs): Reviewed and Approved Board Recommendation (Grant Relief) Reviewed and Approved (Deny Relief)