D E P A R T M E N T O F T H E N A V Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BJG
Docket No: 5613-98
11 August 1999
Dear Ma-
By order filed 20 July 1998, Number 97-499C, the United States Court of Federal Claims has
directed reconsideration of your previous case before this Board, docket number 361-98,
which was denied on 18 June 1998. The court required that the Board "...perform a
comparative review of [your] military record against the sample cases of selected
contemporaries retained by the F Y [Fiscal Year] 1996 and F Y 1997 Lieutenant Colonel
Selection Boards. "
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, reconsidered your case on 11 August 1999. 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 the
court's order, the Board's files on your prior cases (docket numbers 6848-95 and 361-98),
your naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion from the Headquarters Marine Corps Officer Assignment
Branch, Personnel Management Division (MMOA-4), dated 10 August 1998, a copy of which
is attached, and the Master Brief Sheets, providrd by MMOA-4, of officers considered by the
FY 1996 and 1997 Lieutenant Colonel Selection Boards (five selectees and five nonselectees
from each promotion board). They also considered your counsel's electronic mail
transmission dated 6 August 1999, stating that he had nothing further to submit.
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice.
Particularly in light of the comments contained in the advisory opinion from MMOA-4 and
the Master Brief Sheets provided, the Board found it unlikely that you would have been
selected by either the FY 1996 or FY 1997 promotion selection board, had the two removed
fitness reports been removed before the promotion boards considered you.
Since the Board found your FY 1996 and 1997 failures should stand, and they further found
that the fitness reports at issue were removed before the FY 1998 selection board convened in
November 1996, they had no basis to remove your FY 1998 failure.
As the Board found insufficient grounds to strike any of your failures of selection to
lieutenant colonel, they had no basis to recommend your consideration by a special selection
board or to set aside your involuntary retirement on 1 June 1997.
In view of the above, the Board again voted to deny relief. The names and votes of the
members of the panel will be furnished upon request.
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 submission of new and
material evidence or other matter not previously 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,
Enclosure
Copy to:
Charles W. Gittins, Esq.
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
2 NAVY ANNEX
WASHINGTON, DC 20380-1775
IN REPLY REFER TO
1600
MMOA- 4
10 Aug 98
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subi: BCNR PETITION FOR MAJOR^
I
..
Ref:
( a ) MMER Reauest for Advisorv O ~ i n i o n in the case of
of 29 Jul 98
1. In our opinion, the original MMOA-4 Advisory Opinion remains
valid.
2. Per the reference, we reviewed Major
third time. His record was compared to
non-selects retained from the FY96 and FY97 USMC Lieutenant
Colonel Selection Boards.
record for a
and
3. In our opinion, even with the petitioned reports expunged from
the record prior to the FY96 and FY97 boards, Major-
record is not competitive with the sampling of records. The
records-of those selects retained were clearly superior to Major
-s
record while the records of a majority of
non-selects were of superior quality. Specifically, his
performance as a major was clearly below that of all the records
reviewed by this office.
-record
would not have been selected even with t h e
4. In summary, after a review of the selectees and non-selects
retained by the FY96 and FY97 boards, we believe that Major
c o n t e s t e d f i t n e s s r e p o r t s removed from the record. Therefore, we
believe our original MMOA-4 Advisory Opinion remains valid.
Officer Assignment Branch
Personnel Management Division
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