From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) MCO P1610.7E Encl: (1) DD Form 149 (2) Fitness Report for the reporting period 1 Apr 03 to 23 Jun 03 (3) HQMC ltr 1610 MMRP-30 of 15 Jan 19 (4) HQMC memo 1610 MMRP-13/PERB of 3 Jun 19 1. Pursuant to reference (a), Petitioner, a commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by modifying his transfer (TR) fitness report for the reporting period 1 April 2003 to 23 June 2003, and removal of his failures of selection to colonel. 2. Although Petitioner’s 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 his application on its merits. The Board, reviewed Petitioner’s allegations of error and injustice on 5 May 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 (2), a TR fitness report for the reporting period 1 April 2003 to 23 June 2003. Petitioner contends that his fitness report should be modified to a “not observed report” because his RS did not invoke an exception to policy for a reporting period of 84 days, and that his reviewing officer’s (RO’s) comment “[t]actically behind peers in aviation skills although he always gives 100%” is inconsistent with the Performance Evaluation System (PES) guidance provided in reference (b). Petitioner asserts that the errors in the contested report contributed to his failure to select to the grade O6. c. The Marine Corps Performance Evaluation Section (MMRP-30) furnished enclosure (3), an advisory opinion (AO) recommending full relief. The AO noted that the report period covered constituted 84 days, less than the 90-day threshold required for observed reports for a TR occasion, per reference (b), and that Petitioner’s RS omitted any Section I comment invoking exception to the established policy. The AO also noted that Section K4, RO comment in question should be removed as it is deemed derogatory and suggests substandard performance. d. The Headquarters, Marine Corps Performance Evaluation Review Board (PERB), however denied granting any corrective action. Per enclosure (4), the majority opinion of the three members of the PERB determined that Petitioner did not demonstrate probable material error, substantive inaccuracy, or injustice warranting modification of the fitness report in accordance with reference (b). CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that, despite the AO recommendation, and the PERB’s decision, Petitioner’s request warrants alternative relief than that recommended in the AO. In this regard, the Board did not concur with the AO that the RS portion of the report should be modified to reflect a “not observed” report, noting that the RS’s omission of the directed comment in Section I was merely an administrative oversight, and does not invalidate the report. Additionally, the Board noted that Petitioner’s RS had written a seven month observed report for this Petitioner prior to the contested report. The Board determined that his RS was familiar with the Petitioner and had sufficient observation during the reporting period to justify an observed report. The Board determined, however, that the RS’s Section I comment “[s]lightly behind his peers in the cockpit, but continually strives for excellence” is unnecessarily negative and that the sentence shall be partially redacted by removing “[s]lightly behind his peers in the cockpit, but.” The Board concurred with the AO’s recommendation that the RO’s Section K comment “[t]actically behind peers in aviation skills although he always gives 100%” is inconsistent with the PES guidance provided in reference (b), and that it shall be redacted from the report. The Board determined that, although there are errors with the contested report, they are not material error. In this regard, the Board noted that Petitioner was promoted to O4 and O5, after the inclusion of this report in his official military personnel file. The Board also noted that Petitioner’s contention that the report contributed to his failure to select to O6, 15 years after the inclusion of the report in his OMPF, is speculative and without merit, especially when considering the fact that, even after the corrections are made to Petitioner’s fitness report, the report’s relative value remains unchanged. The Board thus concluded that Petitioners failures of selection to O6 shall not be removed from his record. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by redacting “[s]lightly behind his peers in the cockpit, but” from the Section I of the fitness report at enclosure (2). Petitioner’s naval record be corrected by redacting “[t]actically behind peers in aviation skills although he always gives 100%” from the Section K of the fitness report at enclosure (2). No further relief be granted. 4. Pursuant to Section 6(c) of the revised Procedures of the Board (32 Code of Federal Regulations, Section 723.6(c)), 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. The foregoing action of the Board is submitted for your review and action. 5/26/2020 Reviewed, MMRP-30 Advisory Opinion Recommendation Approved (Reporting Senior portions of report modified to reflect “not observed” and Section K comments redacted) Reviewed, Board Recommendation Approved (Select comments in Section I and Section K redacted)