DEPARTMENT  OF  THE  NAVY 

B O A R D   F O R   C O R R E C T I O N  O F   N A V A L   R E C O R D S  

2   N A V Y A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

BJG 
Docket  No:  3056-00 
12  April  2002 

USMC  RET 

This is in  reference to  your application  for correction of  your  naval  record  pursuant to  the 
provisions of  title  10 of  the United  States Code,  section  1552. 

You  requested,  in  effect, correction of  your  record  to  show  that  you  were  not  removed  on 
10 October  1990 from  the list of  selectees by  the June  1990 special  selection  board  for 
promotion to  lieutenant colonel; that  you  were promoted to  lieutenant colonel pursuant to 
selection by  the special selection board; and  that  you  retired  as a lieutenant colonel. 

A  three-member panel  of  the Board  for  Correction of  Naval  Records,  sitting in  executive 
session, considered  your application on  11 April  2002.  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, your 
naval  record  and  applicable statutes, regulations and  policies.  In  addition, the Board 
considered  the advisory opinions furnished by  Headquarters Marine Corps dated  3 1 January 
and  9 July 2001, copies of  which  are attached.  They also considered your  rebuttal letters 
dated  15 April  and  13 October 2001. 

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 dated  9 July  2001, except they  noted  that paragraph  3.c,  line three, 
should refer  to  1990, rather than  199 1.  The evidence of  record, including your  statement of 
12 January  1991, did  not  persuade  them  that your removal  from the promotion  list was 
unwarranted.  The more lenient disposition of  other officers'  cases did  not  convince them 
that  your case was  handled  improperly.  In  view  of  the above, your  application has been 
denied.  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, 

W.  DEAN  PFEIFFER 
Executive Director 

Enclosures 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 N A W  ANNEX 

WASHINGTON,  DC 20380-1775 

IN REPLY REFER TO. 

1070 
JAM2 
3 1 JAN  2001 

MEMORANDUM  FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj:  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR) APPLICATION 

IN THE CASE OF MAJOR 
U.S. MARINE CORPS  (RET) 

1.  We are asked to provide an opinion on Petitionerrs request 
to modify his record to reflect retirement at the rank of 
lieutenant colonel. 

2.  We recommend against consideration of this petition.  It was 
submitted substantially out of time, and no cause whatsoever has 
been proffered to justify an exception to the three-year time 
limit.  Our analysis follows. 

3.  Background 

a.  By Petitioner's  own chronology, he was aware of the 

claimed injustices nearly a decade ago.  In fact, the matters 
asserted in his 12 January 1991 letter to the Secretary of the 
Navy  (SecNav), regarding his removal from the report of the 
Special Selection Board  (SSB), could easily have been presented 
to this Board at that time.  Instead, Petitioner submitted a 
complaint to the Inspector General of the Department of Defense 
(DoD IG) alleging official misconduct  on the part of senior 
officers involved in his initial failure to select for 
promotion, as well as his subsequent removal from the SSB 
report.  DoD IG forwarded Petitioner's  complaint to the 
Department of the Navy IG  (DON IG), and informed Petitioner 
accordingly in June 1991. 

b.  DON IG found no evidence of official impropriety in 

Petitionerrs case, since SecNav's  ordering an SSB had remedied 
the error committed when the fiscal year 1991 lieutenant colonel 
selection board  (FY91 Board) considered Petitioner's  1987 
misconduct.  Further, the report concluded that there was 
nothing improper about SecNav being informed of that same 1987 
misconduct  and removing Petitioner from the SSB selection report 
based upon it.  DON IG provided Petitioner a redacted copy of 
its investigation report in June 1992. 

Subj:  BOARD FOR CORRECT1 
IN THE CASE OF MAJ 
U. S. MARINE CORPS  (RET) 

c.  Almost eight years later1, Petitioner submitted this 

application for relief, asserting in block 1l.a. of that 
document that he discovered the alleged injustice in December 
1997.  According to Petitioner, this "discovery" occurred when 
he read about the circumstances surrounding the nomination of 

U.S. Air Force  ene era-o the chairmanship of the 

Joint Chiefs of Staff  (JCS), and the withdrawal of that 
nomination following the discovery of a decade-old adulterous 
affair.  Petitioner maintains that, when he learned that General 

-s 

not only allowed to remain in his billet as Vice 
Chairman of the JCS, but was also subsequently nominated and 
confirmed as Supreme Allied Commander, Europe  (SACEUR), the 
injustice of his own case became apparent to him. 

4.  Discussion 

a.  Petitioner's  argument benefits from neither law nor 

logic and is, in a word, nonsense.  Petitioner clearly believed 
in 1990 that he had been wronged, and actively sought redress at 
that time, to include raising the matter with DoD IG.  In 1992, 
however, he received the DON IG report that concluded that his 
complaint was factually unsubstantiated.  Petitioner then 
completed the remaining two years of his career, and retired in 
July 1994.  After another three years had passed, Petitioner 
heard about the handling of a completely unrelated case that 
was, procedurally and factually, completely distinguishable from 
his, and decided that he had been treated unfairly in 
comparison.  He then allowed nearly two-and-a-half more years to 
pass before submitt~ilj his plcOcilt tui+laint  to this DL-rd.  In 
sum, then, Petitioner sat on his right to petition this Board 
for redress for nearly ten years.  While the period from 1991 
until 1992 might be excused, albeit generously, on the theory 
that Petitioner was pursuing administrative remedies, there is 
no apparent reason, nor does Petitioner provide one, for him to 
have waited eight more years after receiving a copy of the DON 
IG report to address his grievances to this Board. 

b.  Not only is Petitioner's  application five years out-of- 

time under even the most charitable interpretation of the facts, 
but he offers no credible argument why the interests of justice 

' We note that although the stamped date "May  1 1999"  appears on the bottom 
right  corner of  Petitioner's  application to this Board,  block  15 of  the form 
records the document as having been  signed on 24 April  2000.  Accordingly, 
"1999"  is an apparent  scrivener's  error that should properly  read "2000." 

Subj:  BOARD FOR CORRECTION 
IN THE CASE OF MAJOR 
U. S. MARINE CORPS  (RET) 

should excuse the significant staleness of the filing.  Instead, 
Petitioner simply asserts that his belief that he was treated 
unfairly is shared by others.  The Government, however, has a 
legitimate inrerest in finality in cases like Petitioner's,  the 
alternative being to license any retired servicemember to 
revisit the issue of his or her retirement-grade long after he 
or she leaves active service.  If the timeliness requirement of 
sections 3.b. and c. of SECNAVINST 5420.193 is to be given any 
force, it must be applied to exclude petitions such as this one. 

5.  Conclusion.  Accordingly, for the reasons noted, we 
recommend rejection of this petition as substantially out of 
time . 

/ 

Assistant Head, Military Law Branch 
Judge Advocate Division 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 N A W  ANNEX 

WASHINGTON, DC 20380-1775 

IN REPLY REFER TO 

1070 
JAM 4 

9 Ji:  i d b l  

MEMORANDUM  FOR EXECUTIVE DIRECTOR, BOARD  FOR CORRECTION OF 

NAVAL RECORDS 

Sub j : 

L  RECORDS  (BCNR) .AULICATION 

ltlhaLM 

1.  We are asked to provide an opinion on Petitioner's  request 
that BCNR modify his record to reflect retirement at the rank of 
lieutenant  colonel.  Specifically, we are asked to address the 
following:  (1) the alleged difference between the Assistant 
Commandant of the Marine Corps  (ACMC) Memorandum  to the 
Secretary of the Navy  (SecNav) and the Navy  Inspector General's 
(Navy IG) report as to the facts of Petitioner's  misconduct;  (2) 
the allegation that the regulations relied on by Headquarters 
Marine Corps to deny Petitioner a chance to rebut his removal 
from the promotion  list prior to the Secretary of the Navy 
removing his name were not effective until September 1990, and; 
(3) the alleged due process violation in not allowing  Petitioner 
to comment prior to the Secretary of the Navy making  the 
decision to remove Petitioner's  from the selection list. 

2.  We stand by our previous recommendation of 31 January 2001 
that the requested relief be denied.  Our analysis follows. 

Analysis 

a.  Petitioner's  claim that there were factual differences 

between ACMC's  Memorandum and the Navy IG's  report does not 
provide grounds for relief.  Petitioner is troubled by the fact 
that the Navy IG's  report described his adulterous affair as 
"brief,"  whereas,  the ACMC's  Memorandum described his affair as 
"lengthy."  As we emphasized in our initial response, 
Petitioner's  application is nearly 5 years out of time under the 
timeliness requirement of section 3.b. and c. of SECNAVINST 
5420.193 and nearly a decade after the events in question.  As a 
result, the details of Petitioner's  misconduct have been 
obscured by the passage of time.  What  is clear, however,  is 
that the ACMC, whose  focus was on the nature of Petitioner's 
misconduct, characterized Petitioner's  affair as lengthy.  In 
contrast, the individual drafting the Navy  IG's  report, whose 
focus was on the procedures used  in removing Petitioner's  name 
from the promotion list, considered the duration of Petitioner's 

LECORDS  (BCNR) APPLICATION 

misconduct brief.  There is nothing troubling about two 
individuals with different perspectives  characterizing 
Petitioner's  misconduct  differently.  Moreover,  Petitioner's 
focus on the characterization of the length of his affair misses 
the mark.  Whether it was lengthy or brief does not alter the 
fact that  Petitioner engaged in an adulterous relationship with 
the wife of a staff non-commissioned  officer.  In addition, it 
should be noted that neither the Navy  IG nor the ACMC determined 
Petitioner's  adultery to be a one-time incident. 

c.  Petitioner's  request for relief because Headquarters 
Marine  Corps relied upon regulations that were not effective 
until September of 1991 is specious.  While Petitioner fails to 
identify a specific regulation, we assume he is referring to 
either Department of Defense Directive 1320.12 or Secretary of 
the Navy  Instruction 1420.1A.  Regardless of which regulation 
Petitioner is referring to, his claim is without merit. 
Petitioner's  name was not removed from a "report of the a 
selection board."  Rather, it was removed from a "promotion 
(promotion selection) list."  There is a significant legal 
difference between the two lists with regards to the removal of 
an officer's  name.  In accordance with  10 U.S.C.  §  624  (a) (1)' a 
"report of a selection board"  becomes a "promotion list"  when it 
has been approved by the Secretary of Defense.  Removal from the 
report of selection is governed by  10 U.S.C. §  618, which 
contains provisions for allowing an officer to comment prior to 
his or her removal from the "report of selection."  Removal from 
a "promotion list,"  however, is controlled by  10 U.S.C.  §  629. 
Unlike 10 U.S.C. 5  618, 10 U.S.C. 5  629 does not contain 
provisions providing an officer with notice or an opportlln;.ty to 
respond prior to his or her removal from a "promotion list." 
Additionally, Executive Order  12396 delegates the presidential 
authority to remove an officer from a promotion list to the 
Secretary of Defense.  Executive Order 12396 also allows the 
Secretary of Defense to further delegate that authority.  That 
authority was delegated to the Service Secretaries in a 
Secretary of Defense memorandum  dated 12 January 1983 and 
reconfirmed in a subsequent memorandum dated 19 January 1989. 
Accordingly, no legal error occurred when the Secretary of the 
Navy acted within his authority and removed Petitioner's  name 
from the promotion list. 

d.  Petitioner's  allegation of a due process violation by 
the Marine Corps in not allowing him to comment prior to the 
Secretary of the Navy removing his name from the promotion list 

Subj:  BOARD  FOR CORRECTION 
IN THE CASE OF MAJOR 
USMC 

m

408 U.S.  564 
a protected 

is without merit.  Under Board o 
( 1 9 7 2 )  a right to due process o
 
liberty or property interest  is involved.  To be entitled, 
therefore, to notice and an opportunity to comment on the 
Secretary of the Navy's  removal of his name from the promotion 
list Petitioner would have to establish that he had a protected 
property  or liberty interest in that promotion.  Petitioner 
cannot do so because it is well established that military 
officers are commissioned and serve at the pleasure of the 
President, and, therefore, they do not possess a 
constitutionally protected liberty or property interest in being 
2 
promoted or even retained in service. 

e

1 

5.  Conclusion.  Accordingly, we  recommend that Petitioner's 
request  for relief be denied. 

1 l- 

- - - J m r a n c h  

Judge Advocate  Division 

see 

657 F 
' See L a w   v.  United States, 26 
states, 1986 WL  1167  (S.D.N.Y. 
F.2d 294. 297  llSt Cir. 1972). 

.Supp 1243  (D. Vt.  1987).  See also 
39  (D. Md.  1980). 
C1.Ct. 382  (1992). See a l s  

lp  290,296 (D.D.C. 1975), affrd. sub p ~ .  
cert. denied, 435 U.S. 995 
312  (D.D.C. 1977), --