DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket Nos: 6759-19; 
            8156-19; 
            9405-19; 
            739-20 
Ref: Signature Date 

Dear
 
This letter is in reference to your applications 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 that 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 would not materially add to its 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. 

A three-member panel of the Board, sitting in executive session, considered your application on 7 April 2020. 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.  The Board also considered the previously provided 7 March 2019, 24 May 2019, 27 June 2019, 15 August 2019, and 30 September 2019 AOs furnished by the Marine Corps Performance Evaluation Review Board (PERB), and the 16 October 2019 advisory opinion (AO) furnished by Headquarters Marine Corps (MMRP-50), and your response. 

The Board carefully considered your requests to modify your fitness reports for the following reporting periods:  (1) 1 May 2010 to 31 July 2010, change the report to be not observed; (2) 10 June 2027 to 31 May 2018, change the reviewing officer (RO) comparative assessment remark to the top third of his profile; and (3) 1 June 2014 to 13 August 2014, change Section K.1. “Observation” to insufficient.  TheBoard also considered your request to remove your failures of selection (FOSs) incurred during the Fiscal Year (FY) 2020 and FY 2021 Major (Maj/O-4) Promotion Selection Boards.  The Board considered your contentions that: (1) the reporting period was less than 89 days, and the reporting senior (RS) did not justify the exception to policy as directed by Marine Corps Order (MCO) 1610.7F, the Marine Corps Performance Evaluation System (PES) Manual, and the reporting period dates were modified making the period shorter than initially processed.  You also contend that the PES Manual during this period was different, which means the current guidance for lieutenants does not apply. You further contend that the RO used multiple positive remarks, but evaluated the report within the middle third of this profile.  You claim that it is unlikely to recommend an officer for command opportunities and promotion to major, only to place them in the middle third.  You contend that the RO is required to make a statement when the Marine Reported On (MRO) and RS are the same grade, even when the RS is in a senior billet, but failed to do so, therefore his portion of the report is invalid. And you contend that the PERB approved modifications to your report for the reporting period 10 June 2017 to 31 May 2018 that likely affected your potential for selection during the FY 2020 and FY 2021 promotion boards. 

The Board, however, substantially concurred with the AOs that the contested reports are administratively and procedurally correct, and your FOSs should not be removed.  In this regard, the Board noted that your fitness report for the reporting period 1 May 2010 to 31 July 2010 was for a semi-annual (SA) occasion.  You contend that the report should be marked not observed because the period of observation was less than 89 days, the dates of the reporting period were adjusted, and MCO 1610.7A did not apply to lieutenants during the reporting period.  The AO from the PERB noted that your report covered 92 days, which is more than the 30 days of observation required by the PES Manual for a SA occasion. In accordance with MCO 1610.7F (the 22 June 2009 PES Manual), the RS is required to submit a SA report for active duty second and first lieutenants.  Further, a SA report is only omitted if it is the first report by the RS on the MRO and the period of observation is less than 30 days.  The Board determined that your contested SA report was submitted in compliance with the applicable regulation. 

Concerning your fitness report for the reporting period 10 June 2017 to 31 May 2018, you contend that the RO used positive remarks indicative of being marked in the top third of his comparative assessment profile, the AO noted that the PES Manual does not contain a metrics or scale that would stipulate a “top third” comparative assessment ranking.  The AO also noted that the RO comments comply with the PES Manual, and do not imply, or necessitate, a particular comparative assessment mark.  The Board found no evidence of an advocacy letter from the RO in support of your request, or evidence that the RO’s assessment of your performance is invalid. 

Concerning your fitness report for the reporting period 1 June 2014 to 13 August 2014, you contend that the RO Section K is invalid because he failed to provide a statement regarding the same grade RS and MRO relationship.  The Board noted that both you and the RS for your contested report were captains, and your billet during the reporting period was the company Executive Officer (XO) while the RS was the Company Commanding Officer (CO). The AO noted that the requirement to make a statement indicating authorization is tied directly to the scenario authorizing a staff officer to be the RS for a MRO of the same grade.  The AO also noted that the PES Manual specifically references an exception to the same grade RS and MRO relationship when the RS is the commanding officer.  Accordingly, the Board determined that the RO was not required to provide a Section K statement and his observed report of you will remain unchanged. 

Regarding your request to remove your failures of selection, the Board noted that the changes to your fitness report for the reporting period 10 June 2017 to 31 May 2018 resulted in an increase to your relative value that is above the RS average.  The Board, however, substantially concurred with the AO from MMRP-50 that even with the changes, it was unlikely to have had an impact on your selection.  After a review of your record, the AO noted that while the report is above average, your record shows slightly below average performance across multiple billets, reporting chains, and environments.  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. 

Sincerely,