Docket No: 6010-19
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 13 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 both of the 21 May 2019 advisory opinions (AOs) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which were 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 reports for the reporting periods 17 June 2009 to 30 September 2009 and 24 June 2010 to 30 September 2010.  You contend that both reports should have been submitted as “Not Observed” due to periods of non-availability that reduced the total observed reporting period to under the minimum 90 day threshold for an observed report.   
 
The Board, however, substantially concurred with the PERB that your petition did not demonstrate probable material error, substantive inaccuracy, or injustice warranting removal or modification of the fitness reports, in accordance with the Performance Evaluation System (PES) manual.   
 
With regard to your fitness report for the reporting period 17 June 2009 to 30 September 2009, the Board noted that reporting seniors (RSs) must identify periods of non-availability in Section I, and that the RS to Marine Reported On (MRO) relationship has to already have been established for RS’s non-availability to be germane.  The Board noted that this RS-specific distinction, which still applies to a 30 consecutive day threshold, does not apply to you.  Since the 20-day period of non-availability did not constitute the required minimum of 30 consecutive days, it is not germane.  The Board further noted that PES manual guidance pertaining to Directed Comments relative to periods of non-availability, states, “... comments must include who was non-available, the inclusive dates, and the reason for the non-availability; e.g., proceed, delay and travel...”  This policy provision demonstrates that the travel, delay, leave and permissive temporary additional duty (PTAD) that you referenced are factored in to the overarching non-availability requirements for 30 consecutive days. 
 
With regard to your fitness report for the reporting period 24 June 2010 to 30 September 2010, the Board noted that “Periods of 30 or more consecutive days when either the MRO or the RS was not physically present to perform his or her duties at the reporting command or organization constitute non-availability and do not count when determining minimum observation time for submission of an observed report.”  The Board determined that the 10-day RS PTAD absence did not constitute the required minimum of 30 consecutive days, so it is not germane, regardless of whether or not the RS to MRO relationship was established.  
 
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,