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 your application, 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. 
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 5 November 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 the 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 also considered the 13 September 2019 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was 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 11 February 2016 to 16 February 2016, and subsequently to remove all failures of selection.  The Board considered your contention that your reviewing officer (RO) made adverse comments in Section K-4 and that you were not afforded the opportunity to acknowledge the adverse nature of those comments or provide a statement.  You also contend that the Third Officer Sighter (3OS) wrongly stated that he had adjudicated factual differences when there were not any, and because you were not afforded the opportunity submit a rebuttal to your RO’s comments, the 3OS was unable to fulfill his responsibilities.   
 
The Board, however, concurred with the AO and the PERB’s decision that the report is valid as written and filed.  Likewise, that Board determined that removal of any failures of selection is not warranted.  In this regard, the Board noted that you are not arguing that the adverse nature of the report was unwarranted, but rather you are basing your argument on a technical interpretation of related Performance Evaluation System (PES) Manual guidance set forth for processing adverse fitness reports, and specifically the RO and 3OS responsibilities.   
 
The Board noted that your RO marked neither the “concur” nor “unsatisfactory” block.  The Board also determined that the RO’s statement (i.e., “I concur with the adverse nature of this report”) was not, in itself, an adverse comment.  It was merely a concurrence with the statement of your Reporting Senior (RS) that the contents of the report met the requirements for adverse processing.  You had already acknowledged the adverse nature of the report, and elected not to make a statement.  Regardless of whether the RO should have made any comments under the circumstances, the comments he made were not adverse and therefore any such error was harmless.  For the same reason, the 3OS comments were also not adverse, and did not generate an opportunity to comment.   
 
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. 
 
 Sincerely,