Docket No: 9009-19
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 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  
25 August 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 3 June 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
The Board carefully considered your request to remove or modify your fitness report for the reporting period 12 May 2006 to 7 September 2006.  The Board considered your contentions that you were unjustly rated against Officer Candidate School (OCS) permanent personnel as an augmentee during the summer of 2006, and that the report has had a lasting negative impact on your career progression.  You also contend that, although the Commandant of the Marine Corps Policy update letter does not have any retroactive language, it also does not contain any prohibitive or restrictive language in utilizing it as justification for your request.  You assert that, to not grant your request creates an unfair advantage to those who now serve as augments over those still being penalized for previous reports.  Lastly, you assert that you were on leave for three weeks during the reporting period. 
 
The Board, however, substantially concurred with the PERB, noting that you are centering your argument on your perception that this report constitutes an anomaly to your otherwise stellar career.  Even assuming arguendo, it does not necessarily invalidate the report.  The Board determined that you essentially admit to the limits of this argument in your own statement that, “[n]one of the above points, on their own merit, highlight this [fitness report] as a root cause...”  
 
The Board noted that you also contradict your own argument by virtue of your further admission, “You’ll notice that I have other [fitness reports] as an augment from OCS that I don’t wish removed or modified.  When I received these reports, I had an established rapport with the OCS leadership.  I believe these reports are a more accurate depiction of my performance...”  This begs the question as to whether you felt the report should not have been processed in the first place, or rather is it based on your noted discontent with the relative grades.  
 
The Board also noted that you appear to conflate the policy set forth in the referenced OCS waiver letter, issued 10 years after this report was processed, that actually provides OCS the option to write Not Observed reports for augment personnel, but does not preclude observed reports, as long as they are sanctioned by the commanding officer.  You are correct in your determination that there was indeed serious study given to the perception of bias against OCS augments, and in fact a waiver was later granted.  However, the waiver did not preclude the practice, but required commanding officer acquiescence prior to processing.  Of further note, the Marine Corps did not consequently make the leap and conclude that all prior evaluations for summer augments were necessarily invalidated.  
 
The Board determined that your contention regarding your personal leave during the reporting period does not invalidate the report since it did not constitute 30 consecutive days and therefore, no corresponding Directed Comment regarding a period of non-availability was entered in Section I.  The Board determined that your contention that the Section K comment, “promote with peers” constitutes a “velvet dagger” also lacks merit.  The overwhelming majority of Marines are promoted with their peers.  This is a standard comment from reporting officials and there is nothing “velvet” or “dagger” about it.  
 
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,