From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF XXX XX USMCR Ref: (a) Title 10 U.S.C. § 1552 (b) BCNR Docket No: 4165-17 of 12 Oct 18 (c) MCO 1610.7 (d) MCO 1610.7A Encl: (1) DD Form 149 w/enclosures (2) Administrative Remarks (Page 11) 6105 counseling entry of 2 Aug16 (3) Fitness Report for the reporting period 31 Aug 15 to 5 Aug 16 (4) Fitness Report for the reporting period 1 Oct 16 to 30 Sep 17 (5) Fitness Report for the reporting period 30 Sep 17 to 1 Jul 18 (6) 1stSgt ltr 1000 JPP of 26 Mar 19 (7) HQMC memo 1610 MMRP-30 of 15 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 three fitness reports be removed from her official military personnel file (OMPF). 2. A three-member panel of the Board, sitting in executive session, considered Petitioner’s application on 10 December 2020. The names and votes of the members of the panel will be furnished upon request. Petitioner’s 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 Petitioner’s application, together with all material submitted in support thereof, relevant portions of the naval record, and the enclosures, as well as applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, found 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. On 2 August 2016, Petitioner received enclosure (2), an Administrative Remarks (Page 11) 6105 counseling her for violation of Article 92, Uniform Code of Military Justice, and dereliction in the performance of duties. Specifically, for not maintaining proper accountability of issued gear that was her responsibility to issue or de-issue and for not properly conducting inventories, failing to supervise properly, and falsely accounting for equipment. Petitioner responded with a written rebuttal statement claiming, with explanation, the counseling entry is full of false statements. On 19 June 2018, a panel of this Board found Petitioner’s statement, with her supporting documents very compelling and was convinced by preponderance of the evidence, the issuance of the Page 11 was unjust and concluded that it shall be removed from her OMPF. Reference (b). c. On 6 August 2016, the same officer who issued her the Page 11 counseling entry, issued her Change of Reporting Senior (CH) fitness report for the reporting period 31 August 2015 to 5 August 2016, enclosure (3). Although the report is not adverse, Petitioner contends that the fitness report markings were below average. She also contends that, although Section I comments states that “[Petitioner] demonstrated proficiency within her MOS [military occupational specialty] and performed admirably as the unit’s Supply Chief,” among many other noteworthy statements regarding her performance. She also asserts that, although her primary MOS is 3034, Supply Administration Chief, she had to learn the MOS of 0431, Logistics Embarkation Specialist with no formal training. Additionally, the Inspector-Instructor of noted that she built the Company’s Embark Program from the ground up, earning the unit a 95% on the FRAAP [Force Readiness Assessment and Assistance Program] Embarkation Inspection. Petitioner contends that these statements do not depict a below average Marine, although the relative value of the report is below average (81.86), and they completely contradict the statements made on the Page 11 6105 counseling entry that was issued four days prior. Petitioner also noted that this Board determined that the 2 August 2016 Page 11 counseling entry was unjust, and removed it from her OMPF. d. Petitioner’s succeeding reporting senior (RS) issued an Annual Reserve Duty (AR) fitness report for the reporting period 1 October 2016 to 30 September 2017, and a Transfer (TR) fitness report for the reporting period 30 September 2017 to 1 July 2018, enclosures (4) and (5), respectively. Petitioner asserts that she was told by her First Sergeant, who furnished the statement at enclosure (6), that her RS had a personal vendetta against her due to the friction cause during the Responsible Officers’ wall-to-wall inventory of consolidated memorandum receipt (CMR) assets involving her, and her outgoing and incoming RSs. She explained that the CMR assets rests with the Responsible Officer, and that the CMR assets had been properly managed and accounted for until the Responsible Officer placed the responsibility of managing and accounting of the assets on the Company’s Reserve Supply Marines and Platoon Commanders. Petitioner further described her challenges with the Responsible Officer’s decisions and actions, which caused discrepancies in the supply inventory. Petitioner therefore contends that these reports were used as counseling tools, a lever to exert influence, and a counseling document, in violation of the Performance Evaluation System (PES) Manual, which provides that, “[p]ersonal biases have absolutely no place in the process,” and “[t]he fitness report is not a counseling tool.” Petitioner asserts that the unjust fitness reports have impaired her competitiveness before the [promotion] board, which resulted in her non-selection and non-retention on active duty. e. The advisory opinion (AO), enclosure (7), furnished by the Headquarters Marine Corps Performance Evaluation Section determined that the three contested reports are valid as written and file in Petitioner’s OMPF. With regard to Petitioner’s CH fitness report ending 5 August 2016, the AO noted that the report was not processed as an adverse report, nor was the Page 11 6105 referenced as “Derogatory Material” or anywhere else in the report. Moreover, subsequent removal by this Board’s action does not necessarily precipitate removal of the fitness report for the corresponding issuance date. Additionally, the AO noted that the report’s Section I comments do not depict a below average Marine, and the lacks merit because the PES Manual does not require attribute marks to “match” Section I or Section K comments, nor is any scale feasible. The AO also noted that it is difficult for an Applicant to prove a related allegation that a fitness report has been used as a counseling tool because the purported transgression is not readily self-evident. The AO, therefore, determined that Petitioner’s contention that her AR and TR fitness reports were used as a counseling tool lacks merit, because it lacks sufficient evidence, beyond her First Sergeant’s statement. The AO determined that, while the First Sergeant expressed his personal opinion that these two reports’ RS did utilize the reports as counseling tools, the reports’ respective narratives are not overtly transparent. Furthermore, the First Sergeant’s statement also demonstrated that he provided the RS with precautionary counsel in his role as Command Reviewer, thus demonstrating that the RS was forewarned. The AO noted that, with regard to Petitioner’s contention that the “negligence” of the incoming and outgoing Responsible Officer not following proper procedures when conducting their changeover ultimately resulted in “more below average fitness reports” issued by her new RS lacks merit because it lacks definitive evidence. Finally, the AO noted that the respective report’s narratives, by two different RSs and the same reviewing officer, do not reflect superior, or even above average, performance. Also noted is that, potentially, too much responsibility was placed on the Petitioner, and she may have been assigned an excessive degree of collateral duties that she was not formally trained for. However, both RSs were muted in their respective evaluations, and both graded the Petitioner at the bottom of their respective profiles. Consequently, the AO determined that Petitioner failed to provide compelling evidence that the reporting officials were complicit in malicious violation of pertaining PES Manual guidance regarding fitness report processing, and recommended that the three contested fitness report remain in Petitioner’s OMPF. CONCLUSION Upon review and consideration of all the evidence of record, the Board determined that Petitioner’s request warrants partial relief by removing her CH fitness report ending 5 August 2016 and her AR fitness report ending 30 September 2017. The Board agreed with the AO that some of the purported transgressions are difficult for the Petitioner to prove, and in some cases are not readily self-evident. However, in reaching its conclusion, the Board noted that Petitioner’s unjust 2 August 2016 Page 11 that was later removed from her OMPF was issued by her RS just four days prior to the ending period of her CH fitness report. The Board determined that, although not adverse, the fitness report unjustly reflects low attribute marks, especially when considering the excessive degree of collateral duties placed on the Petitioner that she was not formally trained for, and her billet accomplishments during the reporting period. The Board thus concluded that Petitioner’s CH fitness report ending 5 August 2016 shall be removed from her OMPF. The Board also noted that Petitioner’s second contested fitness report, her AR fitness report, was also tainted even though it was issued by a different RS. The Board, again, agreed with the AO that Petitioner’s perception that the report was used as a counseling tool is difficult for her to prove, and in some cases, not readily self-evident. However, the Board found the First Sergeant’s advocacy letter very compelling, and noted that the Petitioner’s and her RS’s “adversarial relationship” described by the First Sergeant likely began as a result of the wall-to-wall inventory of CMR assets involving her, and her outgoing and incoming RSs, which revealed that mismanagement by the Responsible Officer, and not the Petitioner, caused discrepancies in the supply inventory. The Board determined that this shaky start to the reporting relationship more likely than not, resulted in unjustly low attribute marks. The Board thus concluded that Petitioner’s AR fitness report ending 30 September 2017 shall be removed from her OMPF. The Board, however, substantially concurred with the AO and determined that Petitioner’s TR report is valid. In reaching its conclusion, the Board noted that, by the end of this nine-month reporting period, Petitioner and her RS had a reporting relationship that spanned a total of almost two years. The Board was not convinced that her RS used this report as a “counseling tool” or a “lever to exert influence.” The Board determined that Petitioner would have been keenly aware of her RS’s expectations, and that she was evaluated against the missions, duties, tasks, and standards as communicated by her RS, and the Petitioner did not provide sufficient evidence to prove otherwise. The Board thus concluded that Petitioner’s TR fitness report ending 1 July 2018 shall remain in her OMPF. RECOMMENDATION In view of the above, the Board recommends the following relief be granted. Petitioner’s record be corrected by removing enclosure (3), her Fitness Report for the reporting period 31 August 2015 to 5 August 2016, and replacing it with a memorandum of continuity. Petitioner’s record be corrected by removing enclosure (4), her Fitness Report for the reporting period 1 October 2016 to 30 September 2017, and replacing it with a memorandum of continuity. 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. The foregoing action of the Board is submitted for your review and action. 2/4/2021 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Board Recommendation (Partial Relief) 2/7/2021 Assistant General Counsel (M&RA)