Docket No: 6005-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO USMC Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) Fitness report for the reporting period 21 Jan 06 to 29 Jun 06 (3) Fitness report for the reporting period 30 Jun 06 to 27 Oct 06 (4) Fitness report for the reporting period 28 Oct 06 to 26 Jan 07 (5) ltr 1610 of 18 Dec 18 (6) HQMC memo 1610 MMRP-30 of 23 Jan 19 (7) HQMC memo 1610 MMRP/PERB of 3 Jun 19 1. Pursuant to the provisions of the reference, Petitioner, a commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing his fitness reports for the reporting periods 21 January 2006 to 29 June 2006, 30 June 2006 to 27 October 2006, and 28 October 2006 to 26 January 2007. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 21 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 that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board made the following findings: a. Petitioner contends that: (1) his reviewing officer (RO) for the reporting period 21 January 2006 to 29 June 2006 lowered his section K.3 (comparative assessment) mark from the previous report period without justification. Petitioner claims that his reviewing officer overlooked the previous report to ensure consistent marking; (2) his reporting chain for the reporting period 30 June 2006 to 27 October 2006 was improper and his RO did not have observation or relationship with him. Petitioner claims that his reviewing officer should have been the Chief of Staff because it is unlikely that a general officer would observe a report for a captain. As evidence, Petitioner provided a letter from his RO concurring with Petitioner’s request; and (3) Petitioner’s reporting senior extended the reporting period to 90 days for his fitness report for the reporting period 28 October 2006 to 26 January 2007 to provide more observed time. Petitioner also contends that the observation period was less than 90 days, and the RS was relieved for cause during the reporting period. b. In enclosure (5), Petitioner’s RO agreed with Petitioner’s request to remove or modify enclosure (3), his fitness report for the reporting period 30 June 2006 to 27 October 2006. Petitioner’s RO commented that he does not recall the reasons for the unusual reporting chain or why at the time he felt qualified to act as his RO and it was unlikely that he would have had consistent and sufficient observation of Petitioner’s performance. c. In enclosure (6), the advisory opinion furnished by MMRP-30 noted that Petitioner’s fitness reports are valid and recommended that his contested reports be retained. The AO, however, also recommended that Petitioner’s fitness report contained in enclosure (2) be modified by changing section K.3 (comparative assessment) mark to block “6” instead of block “5” because the mark should be consistent with the RO profile of a Marine being assessed in back to back reporting periods and whose performance remains constant, and the Marine should at least receive the same mark as assigned to the prior report. The AO also noted that there are no overt signifiers of a drop in performance that would merit a corresponding drop in the comparative assessment mark; therefore, it should be adjusted from block 5 to block 6. Concerning enclosure (3), Petitioner’s fitness report for the reporting period 30 June 2006 to 27 October 2006, the AO noted that Petitioner failed to provide any evidence that the established reporting change constituted an injustice. The AO explained that Marine Corps Order (MCO) 1610.7F, the Marine Corps Performance Evaluation System (PES) Manual does not provide hard guidelines for what constitutes sufficient knowledge and observation for a RO. Additionally, there is no scale to match RO comments with the associated comparative assessment, and the perceived competitiveness of a comparative assessment mark is not grounds for redress. Concerning enclosure (4), Petitioner’s fitness report for the reporting period 28 October 2006 to 26 January 2007, the AO noted that Petitioner failed to provide any evidence that his RS was relieved for cause or that his RS was otherwise unqualified to act in the capacity as RS for his report. d. In enclosure (7), the AO furnished by the PERB recommended that Petitioner’s request be denied and his fitness reports be retained as filed because Petitioner did not demonstrate probable material error, substantive inaccuracy or injustice warranting removal of the fitness reports. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial corrective action. The Board substantially concurred with the AO furnished by MMRP-30 that Petitioner’s fitness reports are valid and should be retained. The Board further concurred with the AO’s recommendation that Petitioner’s fitness reports contained in enclosure (2) be modified. In this regard, the Board noted that Petitioner’s previous report was marked in block 6 and based upon a comparison of his attribute marks, Petitioner’s performance reflected improved performance, thus under chapter 4, paragraph 14.b.(4)(b) of the PES Manual, Petitioner’s contested fitness report was marked in error. The Board thus concluded that Petitioner’s fitness report for the reporting period 21 January 2006 to 29 June 2006 shall be modified by changing section K.3 (comparative assessment) mark from block “5” to block “6.” Regarding Petitioner’s request to remove his fitness reports contained in enclosures (3) and (4), the Board found no evidence that Petitioner’s reporting chain constituted an injustice or that Petitioner’s RS violated the PES Manual, was relieved for cause, or was otherwise unqualified to fulfil his responsibilities as RS and Petitioner provided none. The Board noted that Petitioner’s fitness reports have been in his record for more than thirteen years and he has been promoted twice since the processing of his contested fitness reports. The Board thus concluded that there is no probable material error or injustice warranting additional corrective action. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by modifying section K.3 (comparative assessment) mark to block “6” of his fitness report for the reporting period 21 January 2006 to 29 June 2006. Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems/database entries that reference or discuss the material being expunged. No other changes to Petitioner’s naval record. 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. 9/17/2020 Executive Director