Y
DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 2621-00
27 June 

2fKKl

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj:

Ref:

Encl:

:

USMCR (RET

(a) Title 10 U.S.C. 1552

(1) DD Form 149 dtd 3 Apr 00 w/attachments
(2) HQMC JAM3 memo dtd 6 Jun 
(3) Subject’s naval record

00

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
tiled enclosure (1) with this Board requesting, in effect, that the applicable naval record be
corrected by promoting him to colonel, pay grade O-6, on 1 July 1999. Petitioner further
requested that his retirement of 1 January 2000 be set aside.

2. The Board, consisting of Messrs. Frankfurt, Ivins, and 
allegations of error and injustice on 15 June 2000, and pursuant to its regulations, determined
that the corrective action indicated below should be taken on the available evidence of
record. Documentary material considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.

Zarnesky, reviewed Petitioner’s

3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations
of error and injustice, finds as follows:

a. Before applying to this Board, Petitioner exhausted all administrative remedies

available under existing law and regulations within the Department of the Navy.

b.

In correspondence attached as enclosure 

(2), the Headquarters Marine Corps office

having cognizance over the subject matter of Petitioner’s request has commented to the effect
that Petitioner’s promotion request has merit and warrants favorable action.

C.

Petitioner requested retirement with the understanding that he had been promoted to

colonel, but would be retired in the grade of lieutenant colonel because he lacked the
required two years in grade. He says had he known his promotion had been delayed, he
would not have requested retirement, but would have requested a chance to correct any
deficiencies under the weight control regulations.

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, 

’

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosure (2) and paragraph 3.c above, the Board finds the existence of an
injustice warranting the following corrective action.

RECOMMENDATION:

a. That Petitioner ’s record be corrected to show he was promoted to colonel with a
date of rank and effective date of 1 July 1999; and that his lineal precedence be adjusted
accordingly.

b. That Petitioner ’s record be further corrected to show that he was not retired on

1 January 2000, but retained the status in the Marine Corps Reserve he held before that date.

-. 

.

c. That any material or entries inconsistent with or relating to the Board ’s

recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s record and

d. That any material directed to be removed from Petitioner ’s naval record be returned

to the Board, together with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross reference being made a part of
Petitioner’s naval record.

4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) 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.
6A-v.h 
FOR JONATHA
$ S. 
Acting Recorder

ROBERT D. ZSALMAN
Recorder

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RUSKIN

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.

5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures
of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.

Executive Direct

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1775

IN REPLY REFER TO:

1070 
JAM

186 

8N 

’
3
2WI

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

ORRECTION OF NAVAL RECORDS

OF LIEUTENANT COLONE
.S. MARINE CORPS RESERVE

(BCNR) APPLICATION

(RET.)

We are asked to provide an opinion

1.
for promotion to the rank of colonel, and issuance of his
promotion certificate of 1 July 1999.

on Petitioner's request

2;!5 \
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We recommend that the relief be granted.

In particular,
2 .
that his official record be corrected to reflect his promotion
date of 1 July 1999,
Our analysis follows.

and that he receive the promotion warrant.

3 .

Background

a.

In May 1999,

the Secretary of the Navy  

(SecNav)

During June 1999, however,

the Commandant of
SecNav,  authorized

In June 1999,
acting on behalf of  

announced that Petitioner was selected for promotion by the   FYOO
USMCR Colonel Selection Board.
the Marine Corps (CMC),
Petitioner's promotion to the grade of colonel effective on 1
July 1999.
Support Command (MCRSC) was informed that Petitioner failed to
Nonetheless, the
conform to Marine Corps weight standards.
decision to delay Petitioner's promotion was not made until
On 16 July 1999, the
approximately the second week in  
Commanding General, MCRSC, notified Petitioner in writing that
his promotion was being delayed pending an investigation into
his failure to meet weight standards.
the Petitioner was notified of the delay prior to the 1 July
1999 scheduled promotion date.

the Marine Corps Reserve

There is no indication

July-l

b.

Petitioner retired from the IRR effective 1 January 2000.

this Headquarters informally opined' that

In March 2000,
Petitioner was promoted to colonel effective 1 July 1999 when
Petitioner's command failed to properly delay  
Petitioner received a copy of this opinion.

t!he promotion.

1  PHONCON
Meechum o
'  HQMC (JAR) E-Mail memo of 27 March 2000

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

IEUTENANT COLONE
. MARINE CORPS R

4 .

Analysis

a.

Promotion authority for commissioned officers is vested

in the President by the Appointments Clause of Article II,
Section  2, of the Constitution.
become effective when the "last act" legally required is
performed.

Marbury v. Madison, 5 U.S. 137, 155-158 (1803);

Promotions (i.e., appointments)

appointment becomes

--

States, 5 Cl. Ct.

146, 151 (1984).

MARADMIN constitutes this "last act", and the

effective on the date published therein.

b.

An appointment may be delayed, however.

Code, section 14311(c) provides that appointment of an officer
to a higher grade may be delayed if the officer is given written
notice of the grounds for the delay prior to the date of
appointment,

unless it is impracticable to do so.

Title 10, U.S.

C .

In the present case,

while MCRSC became aware of grounds

for delay prior to the effective promotion date, the decision to
Petitioner was
delay the promotion was made after that date,.
statutorily eligible for promotion,
board, and was appointed by the President with the advice and
consent of the Senate.
the "last 
MARADMIN, and directed his promotion on 1 July 1999.

Acting for the President, CMC effected
act! required to promote Petitioner by publishing the

was selected by a promotion

Conclusion.

Accordingly,

for the reasons noted, we

5 .
recommend that Petitioner's official record be corrected to
reflect his promotion on 1 July 1999, and that he receive the
appropriate promotion warrant.
Petitioner's retirement grade will remain lieutenant colonel
since he would not have served satisfactorily in the grade of
colonel for two years proceeding his retirement.

We note, however, that

Judge Advocate Division

2