Docket No. 5959-19 5963-19 Ref: Signatur 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) P1610.7 Encl: (1) DD Form 149 of 15 Mar 19 w/attachments (2) DD Form 149 of 19 Mar 19 w/attachments (3) Fitness Report for the reporting period 1 Jun 14 to 13 Mar 15 (4) Fitness Report for the reporting period 1 Jun 16 to 16 Jun 17 (5) HQMC memo 1610 MMRP-30 of 1 May 19 (6) HQMC memo 1610 MMRP-30 of 26 Apr 19 (7) HQMC memo 1610 MMRP-13/PERB of 3 Jun 19 (8) HQMC memo 1610 MMRP-13/PERB of 3 Jun 19 (9) Petitioner ltr 1610 [initials] of 12 Jun 19 (PERB case 614-19) (10) Petitioner ltr 1610 [initials] of 12 Jun 19 (PERB case 615-19) 1. Pursuant to reference (a), Petitioner, a commissioned officer of the Marine Corps, filed enclosures (1) and (2) with this Board, requesting modification of two fitness reports and removal of his failure of selection to the grade of colonel. 2. The Board, consisting of 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 (3), a transfer (TR) fitness report for the reporting period 1 June 2014 to 13 March 2015. Petitioner contends that, due to miscommunication between him and his reporting senior (RS) at the end of the reporting period, specific actions which would have influenced the qualitative attribute mark were not considered. For that reason, Petitioner requests this fitness report be modified by changing attribute marks within Section F.5 (Communication Skills) and Section H.1 (Evaluations) from “D” to “E,” to accurately represent his performance during the reporting period. In support of his request, Petitioner furnished an advocacy letter from his then-RS recommending approval of the requested changes, accompanied with substantive justification for the modification. In addition, Petitioner furnished an advocacy letter from his-then reviewing officer (RO), who also recommended favorable consideration of Petitioner’s request. c. Petitioner was issued enclosure (4), a TR fitness report for the reporting period 1 June 2016 to 16 June 2017. Petitioner contends that, due to miscommunication between him and his RS at the end of the reporting period, specific actions which would have influenced the qualitative attribute mark were not considered. For that reason, Petitioner requests this fitness report be modified by changing attribute marks within Section D.1 (Performance) and Section D.2 (Proficiency) from “E” to “F,” to reflect his performance during the reporting period. Petitioner also requests to redact the word “be” from the sentence in Section K.4, “Immensely successful and engaging commander who can be handle the most complex of responsibilities with ease.” In support of his request, Petitioner furnished an advocacy letter from his then-RS recommending approval of the requested changes, accompanied with substantive justification for the modification. In addition, Petitioner furnished an advocacy letter from his-then RO, who recommended correcting the typographical error “be” from the sentence. d. Petitioner failed selection by the Fiscal Year (FY) 2020 USMC Colonel Promotion Selection Board. Petitioner’s two contested TR fitness reports were available for consideration by the promotion selection board when he failed to select. Petitioner implicitly contends that the FY 2020 USMC Colonel Promotion Selection Board considered erroneous and improper material contained in his OMPF, and if not for the improper material in his OMPF, it is more likely than not he would have been selected for promotion by the FY 2020 board. e. Enclosures (5) and (6) are advisory opinions (AO) furnished by the Headquarters Marine Corps Performance Evaluation Section (MMRP-30). Both AOs recommended Petitioner’s request to modify his fitness reports at enclosures (3) and (4), be approved. (1) Regarding Petitioner’s fitness report ending 13 March 2015, the AO determined that the lack of timeliness of the petition detracts from its credibility and legitimacy. However, the totality of the evaluation, coupled with the favorable endorsement of the RS and RO, lends a degree of credence to the request. The AO noted that, unlike most requests of this type, Petitioner’s RS at least acknowledged the consequence of her actions, as this potential increase in report average will result in a proportionate decrease in other profile reports. The AO noted that approval of this request would increase the report average to 4.36 as measured against the RS’s report average of 4.49. The resultant relative value would still remain below the RS’s established average at <90.00, but perhaps increase Petitioner’s cumulative relative value from the bottom 1/3 of the RS’s profile to a middle 1/3. This is the likely design and intended result of the petition. MMRP-30 concluded that Petitioner has met the burden of proof and shown by preponderance of evidence probable material error, substantive inaccuracy, or injustice warranting modification of the fitness report, and recommended this fitness report be amended as follows: • In Section F.5, “Communication Skills,” Change the mark of “D” to “E.” • In Section H.1, “Evaluations,” Change mark of “D” to “E.” (2) Regarding Petitioner’s fitness report ending 16 June 2017, the AO determined that the timeliness of the petition lends it credibility and legitimacy. The AO noted that Petitioner’s command tour as a battalion commander was documented via a fitness report with an 83.33 relative value. The fact that the RS wrote an additional 12 reports on grade and Petitioner’s cumulative relative value increased slightly to 83.81 at first blush suggested consistency in the RS marking philosophy, but the reality is the RS maintains an extremely tight profile. The AO further noted that the difference between Petitioner’s 5.0 report average and the RS report high of 5.14 is a mere .14. To adjust this flawed profile, and adjust for Petitioner’s placement near the bottom of his profile, the RS is, by design, advocating for substantive correction to modify the report average in such a manner as to equal his RS high at 5.14. In order to do this, he is proposing a change to two attribute markings that will coincidentally equate to his intended result. The AO determined that, unlike most requests of this type, the RS at least acknowledged the consequence of his actions, as this potential increase in report average will result in a decrease in other profile reports. The AO opined that Petitioner’s request is not misaligned with the totality of the evaluation, and believes that the RS intended the cumulative relative value to be higher than 83.81. The AO determined that the justification provided with the suggested changes is detailed, thorough, and billet/duty specific. The AO concluded that Petitioner has met the burden of proof and shown by preponderance of evidence probable material error, substantive inaccuracy, or injustice warranting modification of the fitness report, and recommended this fitness report be amended as follows: • In Section D.l, “Performance,” Change the mark of “E” to “F.” Add as Justification: “MRO’s results far surpass expectations. He led his staff and the AAV community in a rewrite of the MCTP-3-lOC, formally known as the MCWP 3-13 (Employment of Assault Amphibian Vehicles). This rewrite included improved AAV gunnery standards, incorporating best practices from OpFor AAV/Tank Bns and the Army Maneuver Center of Excellence, and began the AAV/ACV Master Gunner program. He consistently drives his subordinates to new levels of achievement. Sought out by external organizations for AAV operations and training expertise.” • In Section D.2, “Proficiency,” Change mark of “E” to “F.” Add as Justification: “Ben has exemplified the F block descriptor with his ability to translate broad education into innovative actions. He has conceived of and advocated up the chain of command for multi-disciplinary DOTMLPF-type solutions to many problems we face, such as AAV/ACV integration and future ACV structure requirements for effective training. He implemented and improved Assault Amphibian Unit Leader course schedule which provided PTP training time back to OpFor battalions while still producing qualified SNCOs. Innovative and selfless.” • In Section K.4, RO comments, remove the word “be” from the opening sentence. f. On 9 May 2019, Petitioner’s requests contained in enclosures (1) and (2), as well as the AOs at enclosures (5) and (6), were considered by the Headquarters Marine Corps Performance Evaluation Review Board (PERB). As referenced in enclosures (6) and (7), the majority opinion of the three members of the PERB was that, contrary to the AO, the petitions did not demonstrate probable material error, substantive inaccuracy, or injustice warranting modification of the fitness report in accordance with reference (b). g. Petitioner submitted enclosures (9) and (10) in rebuttal of the PERB’s decision to deny his requests for correction to his fitness reports. Petitioner argued that the reports are substantively inaccurate because they do not accurately capture all aspects of his performance during the respective reporting periods. Also, his RSs letters represent an effort to correct the record with additional details that were not included in the reports. Petitioner asserts that the reports are unjust because Section I comments and the assigned relative value of the reports are not aligned. Additionally, the assigned relative values made the reports appear less competitive relative to his RSs’ profile, and that this was not the intended effect as envisioned by his RSs or his ROs, which is why each have requested to have the respective reports modified and restore justice to the record. h. Petitioner was eligible for, and selected by the FY 2021 USMC Colonel Promotion Selection Board. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error and injustice warranting relief. Despite the PERB’s decision to deny Petitioner’s requests, the Board was convinced by the specific justification provided in the advocacy letters furnished by all four of Petitioner’s reporting officials, and the analysis provided in the AOs. With regard to Petitioner’s request to remove his failure of selection, the Board determined that Petitioner’s two contested fitness reports had a negative impact on his competitiveness during FY 2020 promotion selection board, and inhibited a just and objective judgement as to the merits of his record. The Board thus concluded that Petitioner’s record shall be corrected by modifying his fitness reports at enclosures (3) and (4) as recommended by the AOs at enclosures (5) and (6). The Board also concluded that Petitioner’s failure of selection incurred by the FY 2020 USMC Colonel Promotion Selection Board shall be removed. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s record be corrected by modifying enclosure (3), his fitness report for the reporting period 1 June 2014 to 13 March 2015 as follows: • In Section F.5, “Communication Skills,” Change the mark of “D” to “E.” • In Section H.1, “Evaluations,” Change mark of “D” to “E.” Petitioner’s record be corrected by modifying enclosure (4), his fitness report for the reporting period 1 June 2016 to 16 June 2017 as follows: • In Section D.l, “Performance,” Change the mark of “E” to “F.” Add as Justification: “MRO’s results far surpass expectations. He led his staff and the AAV community in a rewrite of the MCTP-3-lOC, formally known as the MCWP 3-13 (Employment of Assault Amphibian Vehicles). This rewrite included improved AAV gunnery standards, incorporating best practices from OpFor AAV/Tank Bns and the Army Maneuver Center of Excellence, and began the AAV/ACV Master Gunner program. He consistently drives his subordinates to new levels of achievement. Sought out by external organizations for AAV operations and training expertise.” • In Section D.2, “Proficiency,” Change mark of “E” to “F.” Add as Justification: “Ben has exemplified the F block descriptor with his ability to translate broad education into innovative actions. He has conceived of and advocated up the chain of command for multi-disciplinary DOTMLPF-type solutions to many problems we face, such as AAV/ACV integration and future ACV structure requirements for effective training. He implemented and improved Assault Amphibian Unit Leader course schedule which provided PTP training time back to OpFor battalions while still producing qualified SNCOs. Innovative and selfless.” • In Section K.4, RO comments, remove the word “be” from the opening sentence. Petitioner’s record be corrected by removing his failure of selection incurred by the FY 2020 USMC Colonel Promotion Selection Board. 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 9/10/2020 Deputy Director