Docket No: 6003-19 
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. 
 
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. 
 
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, as well as the 21 May 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB).  The AO was provided to you on 21 May 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 1 October 2017 to 4 October 2017.  You also request an independent review of your command investigation (CI).  The Board considered your contentions that: (1) your fitness report was submitted five months after the end of the reporting period; (2) you were not afforded due process because there were no legal or administrative processes available to present your side of the facts, except through rebuttal procedures; (3) your relief was unjust, your reporting chain of command was complicit, and the former Commander of Marine Forces Reserve (MARFORRES) did not fulfil his legal requirements to ensure factual accuracy of the CI when presented with additional evidence; and (4) you were not counseled on the findings of the CI that led to your relief.  Lastly, you contend that your former Commander failed to follow the requirements of Marine Corps Order (MCO) 1610.7A, the Marine Corps Performance Evaluation System (PES) Manual as the third officer sighter (TOS).  Specifically, he denied you a meaningful review of your rebuttal statements, he did not order an independent review of the CI, he did not provide you with a copy of your fitness report after the submission of your second rebuttal, and in his comments, he included additional justification for his actions that were not based on the CI or referenced in his reviewing officer (RO) comments. 
 
The Board, however, substantially concurred with the AO that your fitness report is valid and should be retained as filed.  In this regard, Commanders, especially general officers are granted broad discretionary authority and the PES Manual does not provide Commanders guidance or parameters for relief for cause.  The Board noted that your contested fitness report was marked adverse for “Ensuring the Well-Being of Subordinates” and for “Judgement.”  The Board also noted that in accordance with the PES Manual, your reporting officials provided justification for your adverse marks and relief for cause. 
 
Regarding you contention that your fitness report was submitted late, the Board noted that your fitness report was carefully screened prior to acceptance by the Manpower Records and Performance Branch (MMPR-13) and experienced technical glitches that delayed its processing and posting to your record.  The Board determined that while the late submission of fitness reports is unacceptable, it does not render a fitness report invalid. 
 
Concerning your contention that you did not receive due process, the Board determined that you were afforded all due process available to you according to regulations.  The Board noted that you were informed when the report was signed, you were provided no less than five working days to review and sign your report, and you were afforded an opportunity to submit a statement as evidenced by your statement provided in addendum pages one through twenty-seven.  The Board also noted that your relief for cause was based upon performance related adversity.  In accordance with the PES Manual, your reporting officials provided the factual basis for their adverse assessment in the appropriate justification block and noted in section I that you were relieved for cause.  The Board noted, too, that you received a redacted copy of the CI in keeping with Freedom of Information Act (FOIA) policies.  The Board also determined that your reporting officials prepared your fitness report in accordance with regulations. 
 
Concerning your contention that your relief was unjust and your chain of command was complicit, the Board considered the totality of the evidence you provided and found no evidence of unjust treatment or complicit actions by your chain of command.  Moreover, the Board found no evidence to support your contention that your TOS failed to fulfill his responsibility to ensure factual accuracy of the CI.  Contrary to your contention, the Board noted your TOS’s comment, “While I concede no investigation is flawless, it is my judgment that the command investigation at issue was adequate to supply part of the basis upon which I decided to relieve. . .”  The Board determined that, in fact, your TOS did acknowledge issues with the CI, however, he was within his right to determine that the investigation was adequate to arrive at a decision, and he was not required or obligated to direct another CI. 
 
Concerning your contention that you were not counseled, the Board noted your RS section I comment that both he and the Division Sergeant Major (SgtMaj) counseled you and executed your relief in a face-to-face meeting.  Accordingly, the Board found no evidence that you were not counseled and you provided none. 
 
Concerning your contention that your former Commander failed to follow the requirements of the PES Manual as the TOS, the Board noted that chapter 2, paragraph 10.f.(5) of the PES Manual provides that a flag officer or equivalent may serve as both the RO and TOS.  The Board determined that in his role as both RO and TOS, your former Commander was not required to solicit the involvement of another general officer, he was not required to conduct an independent review of the CI, nor was he required to respond or provide you with a copy of your fitness report after submission of your second rebuttal.  Additionally, your TOS noted that he received briefings from the investigating officer; conferred with the reporting senior, his SgtMaj, and your SgtMaj; and consulted with key members of his staff, as it is his right and responsibility to do, before arriving at a conclusion.  The Board determined that your TOS did not violate the PES Manual by expounding on his justification for his loss of trust and confidence in you and he did not exceed his discretionary authority. 
 
Concerning your request for an independent review of your CI, the Board is not an investigative body, but functions to determine if there is an error on injustice in your naval record.  Moreover, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.  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, 
 
9/16/2020


Executive Director