DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAW ANNEX

WASHINGTON DC 20370-5100

.

BJG
Docket No: 8387-97
17 December 1999

This is in reference to your application for correction of your naval &cord pursuant to the
provisions of title 10, United States Code, section 1552. Your previous case, docket number
9183-95, was denied on 19 June 1996. By order of 29 October 1997, the United States
District Court for the District of Columbia, Case Number 
97-0014 (SS), remanded the case to
the Board for Correction of Naval Records for reconsideration with the following directions:

1. Consider the following evidence:

a. Your declaration dated 1 September 1997 that a counselor at the

Headquarters Marine Corps (HQMC) Officer Career Counseling and Evaluation
Section, Officer Assignment Branch, Personnel Management Division (MMOA-4)
informed you that your now removed fitness report for 15 July to 21 November 1994
materially contributed to your failure by the Fiscal Year (FY) 1996 Major Selection
Board.

b. The fact that the MMOA-4 advisory opinion dated 29 November 1995 did
not compare your record with a sampling of records of your peers from the FY 1996
Major Selection Board.

c. The fact you were selected by the FY 1998 

Resetie Major Selection Board.

2. Apply the standard of review requiring a finding as to “whether it was definitely
FY[19]96
unlikely that [you] would have been selected for promotion to Major at the 
Major Selection Board with the fitness report removed from [your] record. 
”

3. Report the Board’s opinions and recommendations to the Assistant Secretary of the
Navy (Manpower and Reserve Affairs) (ASN 

(M&RA)).

In your previous case, you requested removal of your failures by the FY 1996 and 1997
Major Selection Boards, and remedial consideration for promotion. The memorandum for the
record 
also request restoration to active duty. By reason of your failures of selection for promotion,
you were involuntarily discharged from the Regular Marine Corps on 1 January 1997.

(MFR) dated 1 November 1999, a copy of which is attached, reflects that you now

A three-member panel of the Board, sitting in executive session, reconsidered your case on
8 December 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
on your prior case, your naval record and applicable statutes, regulations and policies. In
addition, the Board considered the advisory opinion from the HQMC MMOA-4, dated
25 November 1997, a copy of which is attached. They also considered the MFR dated
1 November 1999, cited above, and the MFR dated 6 December 1999, a copy of which is
attached. Finally, they considered your declaration dated 1 September 1997 and the Master
Brief Sheets of six officers who were considered by the FY 1996 Major Selection Board
(three selectees and three who were not selectees).

’s order, the Board ’s file

“definitely unlikely ” that you would hate been selected by that

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. In this connection, the Board substantially concurred with the comments contained
in the advisory opinion in finding that your failure by the FY 1996 Major Selection Board
should stand. They found it 
promotion board with a corrected record. They found it probable that the fitness report in
question was not in your record considered by the FY 1997 Major Selection Board, noting the
MFR dated 6 December 1999. Further, even if this fitness report were in your record as it
was presented to that promotion board, the other matters of competitive concern cited in the
advisory opinion persuaded the Board that your selection by the FY 1997 Major Selection
Board would have been  “definitely unlikely ” with the report out of your record.Concerning
your declaration, they had no doubt that the removed report materially contributed to your
failure by the FY 1996 Major Selection Board. Your statement that the counselor 
other significant areas of weakness
advisory opinion were not factors in your failures of selection. Regarding your selection by
the FY 1998 Reserve Major Selection Board, they took administrative notice that selection by
a reserve  ‘promotion board is easier than selection by a corresponding active duty promotion
board.

“noted no
” did not convince them that the other matters cited in the

Since the Board found insufficient grounds to remove either of your failures of selection for
promotion, they found no basis to grant you remedial consideration for promotion, set aside
your discharge from the Regular Marine Corps, or reinstate you to active duty.

In view of the above, absent contrary direction from the ASN 
(M&RA), the previous decision
of the Board to deny relief stands. The names and votes of the members of the panel will be
furnished upon request.

It& 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
In this regard, it is
material evidence or other matter not previously considered by the Board.
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, 

-

Enclosures 

-

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
160 0
MMOA-4
25 Nov 97

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD   FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

BCNR PETITION FOR MAJOR
USMCR

(a) MMER
Majo
of 17 Nov 97

(b) Memorandum for the Executive Director, Board for

Corrections of Naval Records of 29 Nov 95

he case of
USMCR

Recommend disapproval of  

1.
his failures of selection.

Majo

request for removal of

Per reference (a), we reviewed Major

2.
as it would have appeared before the FY96 USMC Major Selection
Board.

corrected record

In our opinion,

The less-than-outstanding Section B

the petitioned report does represent jeopardy

It documents his performance as below his peers

appear significant because of his time in service and
Section C comments, such as

3.
to the record.
just prior to the board.
marks, particularly in Growth Potential and General Value to the
Service,
grade.
AND INCREASED WRITING SKILLS WILL SERVE TO STRENGTHEN AND PREPARE
"ALWAYS STRIVES TO RISE ABOVE
HIM FOR FUTURE ASSIGNMENTS." and
DIFFICULT CIRCUMSTANCES  
- AND HAS THE CAPACITY TO DO SO." appear
to indicate that he is not working at a level expected of his rank
and experience.
less-than-outstanding mark in General Value to the Service,
clearly indicating that his overall performance is at a level
below his peers.
out below the other officers on the report.
the petitioned report removed for the record, we believe that the
following competitive concerns
selection:

We consider it significant that he is singled

he is the only officer to receive a

may have resulted in his failure of

"A STRONGER CONCEPTUAL ACUITY

However,

even with

Furthermore,

a.

Military Occupational Specialty (MOS) credibility.

as not had an assignment in his primary MOS since his

initial one as a second lieutenant.
above him and 0 below in his primary MOS.
company command time as a captain may have made his record appear
less competitive than his peers.

He has 3 officers ranked

Finally,

his lack of

Major

Subj:

BCNR PETITION FO
USMCR

b.

Section B trends.

less-than-outstanding
Force,

and Economy of Management.

Section B marks

record contains trends of

in Administrative Duties,

Value and Distribution.

overall Value and

Distribution reflects more officers ranked above him than below.

C .

d.

Professional Military Education (PME).

.

record indicates he has not completed the requisite PME
grades of lieutenant and captain.

for'the

We reviewed the records of 6 officers that were retained by

4.
the Promotions Branch as sample cases:
record
and 3 that failed selection for promotion.
for
does not appear as competitive as those re
His record appears less competitive than at least one
promotion.
Therefore, we feel
of the records not selected for promotion.
there is no compelling evidence that would cause us to change our
original recommendation contained in reference (b).

3 selected for promotion

The FY96 USMC Major Selection Board had a selection

The overall in-zone selection rate
The in-zone selection rate for 1802s was 81.3

5.
opportunity of 70.0 percent.
was 70.0 percent.
percent.

Head, Officer Career Counseling and
Evaluation Section
Officer Assignment Branch
Personnel Management Division

2

MEMORANDUM FOR THE RECORD

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR)
PERFORMANCE SECTION
2 NAVY ANNEX, SUITE 2432
WASHINGTON, DC 20370-5100
TELEPHONE: DSN 224-9842 OR COMM (703) 614-9842
FAX: DSN 224-9857, COMM (703) 614-9857
EMAIL:

HQ.NAVY .MIL

DATE: 1 NOV99

DOCKET N

PETITIONER (PE

PARTY WHO CALLE

TELEPHONE NUMBE

WHAT I SAID:  I ASKED IF PET STILL WANTED A SPEC SEL BD, WHETHER HE
WANTED TO RETURN TO ACTIVE DUTY, AND WHETHER HE WAS GOING TO
SUBMIT A REBUTTAL TO THE ADVISORY OPINION FROM MMOA-4.

WHAT PARTY SAID: HE INFORMED ME THAT PET STILL WANTED A SPEC SEL
BD AND TO RETURN TO ACTIVE DUTY.
TO SUBMIT A REBUTTAL STATEMENT TO THE ADVISORY FROM MMOA-4.

HE STATED THAT HE WAS NOT GOING

UMFORTHERECORD

THII NAVY

DEPARTMENT OF  
BOARD FOR CORRECTION OF NAVAL  
PERFORMANCESECTION
2 NAVY ANNEX,  
WASHINGTON, DC 
COMM:  (703) 614-9842 OR DSN: 224-9842
FAX: (703) 614-9857 OR 224-9857

STE. 2432

20370-5100

RECORDS

.

DOCKET NO:
PETITIONER
PARTY CAL
TELEPHONE N
WHAT I SAID:
WHAT PARTY SAID:
PET’S CONTESTED FI
HQMC MMPR-1 AND MMSB OF THE PERB ’S ACTION. THE FY-97 USMC MAJ SEL
BD DID NOT CONVENE UNTIL 

ORMED ME SHE DIRECTED THAT
29NOV95 BY NOTIFYING THE

30JAN96.

.

DEPARTMENT OF THE NAVY

OFFICE OF THE SECRETARY

1000 NAVY PENTAGON

WASHINGTON, D.C. 20350-1000

15 February 2000

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS

Subj:

BCNR CASE OF MAJ

SMCR

I have considered the report of the Board for Correction of

The BCNR recommended that

After careful

Naval Records dated 17 December 1999.
the relief requested by petitioner be denied.
review,

I approve the  

BCNR's  report and recommendation.

egrxry  of the Navy

(Manpower and Reserve Affairs)

DEPARTMENT OF THE NAVY

OFFICE OF THE SECRETARY

1000 NAVY PENTAGON

WASHINGTON, D.C. 20350-1000

15 February 2000

Pursuant to the order dated October 29, 1997, from th

United States District Court for the District of Columbia, I hav
reviewed the report, dated December
Corre
Major

.

  17, 1999, of the Board for

(BCNR) in the case of your client,

ited States Marine Corps Reserve.

e

e

After careful review of your client's case, I approve the

report of the BCNR.

I regret that   a more favorable reply could not be made.

t Secretary of the Nav

(Manpower 

& Reserve Affairs)

y