Docket No: 8348-19
Ref: Signature Date


    
Dear : 
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.    
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
Your request has been carefully examined by a three-member panel of the Board, sitting in executive session on 30 October 2020.  The names and votes of the members of the panel will be furnished upon request.  Documentary material considered by the Board consisted of your application and the matters submitted in support of your application.  The Board also considered the 29 August 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which were previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so.    
 
The Board carefully considered your request to remove your fitness report for the reporting period 30 March 2011 to 30 September 2011.  The Board considered your contention that the fitness report was utilized as a punishment for an isolated incident, and that your reviewing officer (RO) and sergeant major each furnished a letter requesting removal of the fitness report. 
  
The Board, however, substantially concurred with the AO.  In this regard, the Board noted that there is no overt evidence in the record, and you submitted none, to support your board claim that your reporting senior (RS) used the report as either a disciplinary tool, a lever to exert influence, a counseling tool, or a combination thereof.  Although you contend it was based on an isolated incident, the event was complimented by several additional substandard factors.  Furthermore, isolated events are often deemed significant enough, or egregious enough to be documented via an adverse fitness report.  The Board thus concluded that the report accurately reflected documented shortfalls in your performance and conduct, and is deemed valid as written. 
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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,