Docket No: 7519-19
Ref:   Signature Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj: REVIEW OF NAVAL RECORD OF    USMCR 
 
Ref:  (a) 10 U.S.C. § 1552 
      (b) SECNAVINST 5420.193 
      (c) MCO 1610.7A, 1 May 2018 
 
Encl: (1) DD Form 149 w/ enclosures 
      (2) Fitness Report for the reporting period 1 Oct 16 to 17 Aug17 
      (3) HQMC memo 1610 MMRP-30 of 20 Jun 19 
      (4) HQMC memo 1610 MMRP-13/PERB (undated) 
      (5) Petitioner Rebuttal 21 Aug 19 
  
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing enclosure (2) from his Official Military Personnel File. 
 
2.  The Board reviewed Petitioner’s allegations of error and injustice on 13 October 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken.  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, finds 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 asserts that enclosure (2) was not written in accordance with the reference (c), and that it is inaccurate and unjust.  Specifically, Petitioner contends that the Reporting Senior (RS) was a relatively junior Major who was subordinate in time in grade to Petitioner, who had been selected for promotion to Lieutenant Colonel at the time; that the contents of enclosure (2) represented an unexpected drop in performance without appropriate counseling in accordance with reference (c); and that enclosure (2) was riddled with “velvet daggers” that were clearly meant to be adverse, but which were inaccurate, unfair and unjust.1  Petitioner provided 
1 The “velvet daggers” described by Petitioner included, in Section K, the Reviewing Officer comment: “[H]as spent the past year on his own program attempting to maintain currency as an 8002 JTAC, but needs to focus on developing as a staff officer”; in section I, the RS comments: “[Petitioner] demonstrates the status quo for rank and specialty.  His knowledge pertains to Marine Corps aviation and control of aviation assets”, “[I]n spite of not attaining designation as a JTAC…”, and “He … assisted greatly in transporting Marines to the rear in an OCONUS environment.”  extensive documentation explaining the context of these comments and why they were inaccurate, unfair, or unjust.   
 
 c.  On 11 July 2019, the Headquarters, Marine Corps, Performance Evaluation Review Board (PERB) reviewed Petitioner’s application for relief, and advised the Board that it did not demonstrate probable material error, substantive inaccuracy, or injustice warranting removal of the fitness report in accordance with reference (c).  It did, however, direct that enclosure (2) be modified to remove the following comments that Petitioner had identified as “velvet daggers”: (1) in Section I, the comment “[Petitioner] demonstrates the status quo for rank and specialty”; and (2) in Section K-4, the comment “Has spent the past year on his own program attempting to maintain currency as an 8002 JTAC, but needs to focus on developing as a staff officer.”  See enclosure (4).   
 
 d.  In response to the enclosure (4), by memorandum dated 21 August 2019 Petitioner requested that the Board also consider removing at least the bolded portion of the following comment in Section I of enclosure (2):  “In spite of not attaining designation as a JTAC, [Petitioner] showed interest in the subject matter and accepted opportunities to perform as a supervised JTAC,” from Section I of enclosure (2).  See enclosure (5). 
 
CONCLUSION: 
 
Upon review and consideration of all the evidence of record, and especially in light of the PERB advisory opinion, the Board determined that Petitioner’s request warrants partial relief.  The Board found that the reviewing officers used extraneous negative language throughout the report.  Accordingly, the Board thus concluded that Petitioner’s fitness report at enclosure (2) shall be modified by redacting from Section I the language, “In spite of not attaining designation as a JTAC.” 
 
The Board, however, determined that the fitness report should not be expunged from Petitioner’s record.  In this regard, the Board determined that removal of the report is not warranted as the modifications to the report correct the error and injustice.  The Board thus concluded that the contested report, as modified, shall remain in his record.  
 
RECOMMENDATION: 
 
In view of the above, the Board recommends the following corrective action: 
 
That Petitioner’s naval record be corrected by redacting from his fitness report for the reporting period 1 October 2016 to 17 August 2017 the following phrase in Section I: “In spite of not attaining designation as a JTAC.”  
 
That no further relief be granted. 
 
4.  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.  Pursuant to the delegation of authority set out in Section 6(e) of reference (b) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy.