Docket No: 7027-19 
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.     
 
A three-member panel of the Board, sitting in executive session, considered your application on 29 September 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 5 July 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB).  The AO was provided to you on 5 July 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 16 March 2017 to 5 September 2017.  The Board considered your contentions that your entry into a Pretrial Diversion Program was the basis for the adverse nature of your fitness report and you were issued an Administrative Remarks (page 11) 6105 counseling entry documenting your involvement in a domestic violence incident, however, your First Sergeant (1stSgt) told you there is no basis for a rebuttal.  You also contend that according to the Marine Corps Performance Evaluation System (PES) Manual, reporting officials must not report pending matters, and conduct-based adversity is only reported after the matter is adjudicated.  You claim that the Family Advocacy Program (FAP) Incident Determination Committee (IDC) found that an incident of domestic violence did occur, but did not conclude that you committed a crime.  You also claim that because you never entered a plea of guilty, and your Nolle Prosequi Order shows that your case was dismissed on 19 June 2018, your RS’s reporting of pending legal and non-adjudicated matters resulted in your failure to be selected to the next grade.
   
The Board, however, substantially concurred with the AO that your fitness report is valid and should be retained as filed.  In this regard, the Board noted your 10 July 2017 6105 entry counseling you for your involvement in a domestic violence incident resulting in your arrest, your entry in the pre-trial diversion program, and IDC determination that a domestic violence incident did occur.  The Board also noted that your contested report was marked adverse for derogatory material and for setting the example.  The Board determined that your 6105 counseling entry and your RS’s ability to substantiate your involvement in a domestic violence incident is a valid basis for your adverse fitness report.  The Board also determined that the deferment of your offense and subsequent completion of a pre-trial diversion program does not invalidate the underlying incident or adverse nature of the fitness report.  The Board found no evidence that your 1stSgt advised you not to submit a rebuttal to your 6105 counseling entry and you provided none.  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 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,