DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8240-19 Ref: Signature Date This 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. A three-member panel of the Board, sitting in executive session, considered your application on 10 September 2019. 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 18 June 2018 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), and your response. The Board carefully considered your request to modify or remove your attribute marks for the fitness report for the reporting period 1 July 2015 to 31 May 2016 by increasing the marks for Sections D-1 (Performance), D-2 (Proficiency), E-2 (Effectiveness Under Stress), E-3 (Initiative), F-1 (Leading Subordinates), F-2 (Developing Subordinates), F-3 (Setting the Example), F-4 (Ensuring Well Being of Subordinates), F-5 (Communication Skills), and H-1 (Evaluations). You also request the replacement of the Section I comments; replacement of your Addendum page comments; modification of Section K-3 (Comparative Assessment) to the sixth block; and replacement of Section K-4 comments. You further request modification to Section K-3 (Comparative Assessment) from the fifth block to the sixth block of your fitness report for the reporting period 1 June 2016 to 31 August 2016; reimbursement of 14 days of annual leave; removal of your failures of selection incurred by the Fiscal Year (FY) 2019 and FY 2020 Major Promotion Selection Boards; the convening of a special selection board (SSB) for promotion to O-4; and non-competitive assignment to the Naval Postgraduate School (NPS). The Board considered your contentions that the first report’s Section I comments align directly with at least the mark of “D” for each attribute mark, that the AO ignores the investigative report regarding your flight status from 2015 to 2016, and that you were hazed, intentionally given instructions not to prepare for flights, and not provided ample time for remediation. You also contend that: the Section I comments did not contain “Other Required Directed Comments” as directed by the Performance Evaluation System (PES) Manual; any opportunity to conduct an objective equitable evaluation was damaged by manpower issues; your Executive Officer was unable to function as the chairman of the Human Factors Board (HFB) that was convened after a training exercise contested flight experience involving you and your reporting senior (RS); the HFB members worked for the same RS and reviewing officer (RO); the HFB never identified a specific flight-related deficiency, aside from commenting that there were struggles; the initial meeting to review the billet description did not occur until 70 days after the Marine Reported On (MRO) and RS relationship was established; and Section I contains ambiguous comments. Additionally, when you requested permissive temporary additional duty (PTAD) to facilitate an adoption, you were only permitted to take six days of leave, then 14 days following a deployment, reducing your Title 10 entitlement in connection with adoption to 21 consecutive days; there were delays in the equitable consideration for promotion based on significant errors in the contested report that disproportionately affected the FY 2019 and FY 2020 Major Promotion Selection Boards; and the inequitable weight of three contested reports and two failures of selection affected your selection for NPS. Concerning your contention that the contested report covering the reporting period 1 July 2015 to 31 May 2016 contains erroneous Section D through H attribute marks and erroneous Section K marks, the Board substantially concurred with the AO that the report is administratively and procedurally correct. In this regard, the Board noted that there is no scale to match attribute markings with Section I comments, nor is such a scale feasible. The purpose of Section I and Section K comments are not to justify attribute marks or the comparative assessment mark, but to provide a more complete and detailed evaluation of your professional character and potential. The Board determined that, without an advocacy letter from your RS and RO, requesting modification to the contested report, there is no basis to modify the attribute marks or comparative assessment mark. Concerning your request to modify the comparative assessment of your fitness report for the reporting period 1 June 2016 to 3 August 2016 to the sixth block, the Board noted that, pursuant to the PES Manual, “If the RO is the same as the previous report on the MRO and the RO’s evaluation of the MRO’s potential has not changed, the RO may select ‘Extended by RO’ in A­PES. The comment ‘My observation remains the same will appear in K-4.’” Based upon this, the Board determined that Section K of that contested report is compliant with regulations. The Board, therefore, determined that, without an advocacy letter from your RO, your request lacks merit. Concerning your contentions that Section I contains ambiguous comments and your RS did not include required, directed comments in Section I of the first report, the Board determined that your RS’s Section I comments sufficiently met the PES Manual’s requirement for “Other Required Directed Comments” for Marine aviators and flight officers. Therefore, the Board concluded that, without an advocacy letter from your RS requesting modification to his Section I comments, there is no basis to modify those comments. Concerning your contentions that any opportunity to conduct an objective equitable evaluation was damaged by manpower issues; your Executive Officer was unable to function as the chairman of the HFB; the HFB members worked for your RS and RO; and the HFB never identified a specific flight-related deficiency, aside from commenting that there were struggles, the Board noted that, although the HFB determined that you presented a minor hazard to the squadron and were unlikely to be the contributing factor of a mishap, however your flight time was inconsistent and may have led to struggles during the exercise. The HFB also determined that the inconsistent flight time was a result of leave you requested, and that the adoption of a new child was affecting your performance more than you realized. The HFB recommended that you take advantage of the simulator at every opportunity. The Board found no evidence that manpower issues or the composition of the HFB negatively affected your RS’s or RO’s evaluation of your performance during the reporting period. Concerning your contention that the initial meeting to review the billet description occurred 70 days after the formation of the MRO-RS relationship, the Board determined that, although you did not meet with your RS within the first 30 days to formalize your billet description, the timing of the meeting is not so egregious that it invalidates the fitness report. Concerning your contention that you were not permitted to take permissive temporary additional duty to facilitate an adoption, the Board found no evidence of an injustice and determined that a credit toward your leave balance is unwarranted. Concerning your contention that significant errors in the two reports disproportionately affected the outcome of the FY 2019 and FY 2020 Major Promotion Selection Boards, the Board determined that, based upon its findings above, there were no material errors or injustices in your reports and therefore, there is no justification to remove your failures of selection or to direct the convening of an SSB. Concerning your request for non-competitive assignment to the NPS, the Board noted that pursuant to MARADMIN 050/19, Academic Year 2019-2020 NPS Distance Learning Opportunities, “Officers who are in the above zone for promotion will not be considered,” and therefore determined that you are ineligible for consideration. Moreover, even if you were eligible, the Board concluded that your non-assignment to a competitive academic billet is not a material error or injustice in your record, and, even if it were, it is not the kind of error or injustice that would warrant the Board’s corrective action. Concerning the late submission of the first report by your RO, the Board noted that, while late submissions are unacceptable, the timeliness of submission does not invalidate a report. 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 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.