Docket No: 7338-19
Ref: Signature Date 

Dear  
 
This letter is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 13 October 2020.  The names and votes of the panel members 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 carefully considered your request to remove all documents and references from your OMPF pertaining to the allegation that you falsified a NAVMC 11622 to reflect that you had passed the Combat Fitness Test (CFT) on 15 July 2017, to include a 7 October 2017 Administrative Remarks (Page 11) 6105 counseling entry and the 5 October 2017 relief-for-cause letter.  The Board did not consider your request to remove derogatory information from your fitness report for the period from 1 October 2016 to 30 September 2017 or from your Master Brief Sheet because you have not yet exhausted your available administrative remedies regarding these records.  Specifically, you must petitioner the Marine Corps Performance Evaluation Review Board (PERB) before petitioning the Board for this relief. 
 
The Board considered your contention that the Page 11 entry is invalid because your rebuttal statement was not submitted into your OMPF, that certain Marines pertinent to the investigation were not interviewed by the Investigating Officer (IO), that the IO lied to you by advising you he was not the IO and asked you questions that were later used in the investigation under the guise of a preliminary interview, and that the CFT was not conducted in accordance with Marine Corps regulations.   

With regard to your contention that your rebuttal to the Page 11 entry is invalid because your rebuttal was not entered into your OMPF, the Board found no evidence that you ever submitted such a statement.  You initialed the Page 11 entry indicating your intent to do so, but you provided no evidence that you ever actually submitted such a statement.  The Board noted that you provided a 12-page memorandum, dated 11 July 2019, addressed to an unidentified commanding officer purporting to be a rebuttal to the counseling for entry into the OMPF. While drafted as a rebuttal to be entered into your OMPF, this document appears to have been prepared for this petition and not within five working days of the counseling.  Accordingly, the Board found insufficient evidence to conclude that you submitted a rebuttal statement to your command for their consideration or entry into your OMPF.   
 
The Board also noted the evidence that you provided which might raise doubts about the findings of the command investigation (CI) that resulted in your adverse fitness report and relief for cause.  However, you did not provide the Board with a copy of the CI so that it could compare this evidence to that which the IO relied upon to substantiate the allegations against you and which your commanding officer relied upon to relieve you from cause.  Accordingly, the Board found insufficient evidence to call into question the sufficiency of the CI that the derogatory information in your record is based upon. 
 
Finally, the Board found insufficient evidence to support your contention that neither the CFT nor the NAVMC 11622 were administered appropriately.  However, it did not believe the propriety of the either the CFT or the form used to report the results would be relevant to the question of whether you falsified the report.  Additionally, the Board found no error in any questions asked in the context of a preliminary inquiry being used in the subsequent CI.  Again, it would be difficult for the Board to evaluate the propriety of a CI that was not provided to it for review, but in general it did not find what you described to be either deceitful or improper.  Information gathered in the context of a preliminary inquiry is commonly incorporated into subsequent investigative reports. 
  
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,