DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 404-00
28 February 2002

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

Secretary of the Navy

Subj 

:

Ref:

Encl:

MAJ
REVIEW OF NAVAL RECORD

, II, USMCR (RET)

(4

(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Title 10 U.S.C. 1552

Dee 00

DD Form 149 dtd 13 Jan 00 w/attachments,
incl Subject’s ltr dtd 12  
HQMC JAM01 memo dtd 11 Apr 00
HQMC RAM memo dtd 24 Apr 00
Counsel ltr dtd 7 Jun 00
Memo for record dtd 13 Jun 00
OJAG Ser 13 memo dtd   3 Jan 01 
Counsel ltr dtd 1 Feb 01  
w/encls
Subject’s naval record

w/encls

Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,

(l), with this Board requesting, in effect, the following

1.
filed written application, at enclosure  
relief:

Restoration to the Fiscal Year (FY) 1998 Reserve Lieutenant Colonel promotion list,
promotion to lieutenant colonel with a date of rank and effective date of 1 June 1997;

a.nd

 

Removal of the failure of selection notation caused by his removal from the FY 1998
Reserve Lieutenant Colonel promotion list, and removal of his failure of selection by
the FY 2001 Reserve Lieutenant Colonel Selection Board [he was not considered by
the FY 1999 or  
20 Reserve Lieutenant Colonel Selection Board, as he was still on
the FY 1998 Reserve Lieutenant Colonel promotion list when those promotion boards
convened; and he does not contest his first failure of selection, by the FY 1997 Reserve
Lieutenant Colonel Selection Board]; and

Removal of all documentation relating to the delay of his promotion to lieutenant
colonel and his removal from the FY 1998 Reserve Lieutenant Colonel promotion list
(copies of documents on his Official Military Personnel File (OMPF) at Tab A).

Because of the failures of selection for promotion, he was involuntarily removed from active
status in the Marine Corps Reserve and transferred to the Retired Reserve on 1 April

 2001.

By letter of 12 December 2000, also at enclosure
request that he be reinstated to active status; and that he be awarded constructive point credit
to give him satisfactory service, for purposes of eligibility for retired pay at age 60, for the
period from 1 April 2001 to his reinstatement.

(l), he amended his petition to add a

 

2. The Board, initially consistin
reviewing Petitioner ’s allegations
20 June 2001, the Board, then consisting of Messrs. Shy and Silberman and Ms. Madison,
continued deliberations. This same panel completed their review on 28 February 2002 and,
pursuant to the Board ’s 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.

an

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

’s allegations

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

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

b. Enclosure (1) was filed in a timely manner.

C.

Petitioner, who had failed of selection before the FY 1997 Reserve Lieutenant

Colonel Selection Board, was selected by the FY 1998 Reserve Lieutenant Colonel Selection
Board, which met on 15 April 1997. His projected date of rank and effective date was
1 June 1997.

 

,

d. On 27 June 1997, Petitioner was involved in an automobile accident in Okinawa,

.10 percent.

Japan. He was charged with driving under the influence (DUI) of alcohol, after having taken
a breathalyzer test which indicated that his blood-alcohol content (BAC)
The Japanese BAC standard is lower than that for Marine Corps Base C
Okinawa, Japan, and the United States in general, which is
(MP) were called, and Petitioner was charged with failure to yield to another vehicle and
MP’s. On 13 August 1997, his military
refusal to take another BAC test offered by the
driving privileges were revoked for six months, and he was assessed points against his
driving record. On 25 August 1997, he appeared in Japanese court, accepted a finding of
guilty to DUI, and was fined $500.00. He received an adverse fitness report for 15 May to
12 September 1997 (copy at Tab B), which he does not contest, documenting that he was
found guilty of DUI; and the Commandant of the Marine Corps (CMC) was notified
accordingly. On 23 September 1997, the Commander, Marine Corps Reserve Support
Command (CMCRSC) notified Petitioner that he had delayed Petitioner ’s promotion to
lieutenant colonel. Before delaying Petitioner ’s promotion, the CMCRSC did not notify him
of his intention to impose a delay, nor did he give him a chance to make a statement.
On
16 November 1997, CMC notified him that his promotion had been delayed, and that he was

 

2

 

being considered for removal from the FY 1998 Reserve Lieutenant Colonel promotion list.
On 27 April 1998, the Assistant Secretary of the Navy (Manpower and Reserve Affairs)
(ASN (M&RA)) ratified and extended the CMC delay of his promotion. On 8 July 1998, the
Staff Judge Advocate (SJA) to CMC forwarded his recommendation to CMC. The SJA
recommended that Petitioner be promoted because the traffic accident was caused by a
.05 percent was below the
parked vehicle that obstructed his view, and his BAC of
presumptive level of intoxication required of a DUI offense in the United States. The
Director of the Headquarters Marine Corps (HQMC) Personnel Management Division and
the Deputy Chief of Staff, Manpower and Reserve Affairs agreed, and recommended that he
be promoted. The Secretary to the General Staff, a Marine Corps major general, in his
recommendation to CMC, indicated that CMC had never removed anyone from a promotion
list for DUI, only for driving while intoxicated (DWI). However, the Secretary to the
General Staff recommended that Petitioner be removed from the promotion list. On
4 August 1998, CMC recommended to the Secretary of the Navy (SECNAV) that
Petitioner’s name be removed from the promotion list. On 19 October 1998, SECNAV
approved removal of Petitioner ’s name from the  “selection board report. ” On 21 May 1999,
the Deputy Secretary of Defense forwarded the SECNAV recommendation to the President,
indicating that the SECNAV recommendation had been to remove Petitioner from the
“promotion list, 
removed Petitioner’s name from the promotion list.

” rather than the  “selection board report. ” On 1 June 1999, the President

e. As shown on Petitioner ’s Career Retirement Credit Record, a copy of which is at

Tab C, he has attained the 20 qualifying years needed to be eligible for retired pay at age 60.
However, his removal from active status on 1 April 2001 made him ineligible to earn any
additional point credit for the purpose of increasing the amount of his pension.

f.

Petitioner’s counsel argued that Petitioner was not given proper written notice before

He noted that a promotion may be delayed for only

’s

ALMAR (All Marine Corps) message  

his promotion was delayed, and that the delay was effected before giving Petitioner an
opportunity to make a written statement.
six months, unless SECNAV specifies a further delay. He contended that Petitioner
promotion was effective on 1 June 1997, and that no action was taken to delay his promotion
until after this date had passed. He also argued that even if Petitioner ’s effective date of
promotion were taken to be 1 October 1997, the date likely to be urged by the Department of
the Navy in light of  
referred to this message as  “ALNAV [All Navy]” 
with the six-month delay limitation.
Counsel further argued that the only permissible
grounds for delaying an officer ’s promotion are if that officer is mentally, physically,
morally, or professionally unqualified to perform the duties of the grade for which he was
selected for promotion; however, the letter of 23 September 1997 notifying Petitioner of the
delay of his promotion indicated that his promotion was delayed for poor judgement, and
failed to state a permissible basis for delay.
was to remove Petitioner from the report of the selection board, not the promotion list. He
erroneously cited statutory (title 10, subtitle A, United States Code, Chapter 36) and
regulatory (SECNAV Instruction (SECNAVINIST)  

319/97), SECNAV still did not comply

Finally, he argued that the intent of SECNAV

319/97 (counsel erroneously

142O.lA) provisions applicable to  

active-

3

duty list promotions,
provisions applicable
United States Code, Part III; there is no applicable regulation comparable to SECNAVINST
142O.lA.

rather than Reserve active-status list promotions. The statutory
to Reserve active-status list promotions are in title 10, subtitle E,

ALMAR 

319/97”) established Petitioner ’s effective date of

In this regard, JAM01

g.

In correspondence attached as enclosure  

(2), the HQMC Military Law Branch, Judge

” and the letter cited the DUI as a basis for the delay.

(JAMOl) has commented to the effect that Petitioner ’s request should be

319/97 (as counsel had done, JAM01 also erroneously referred to this

Advocate Division 
denied. JAM01 stated there was no defect in the delay of his promotion and removal from
the FY 1998 Reserve Lieutenant Colonel promotion list. They stated that Petitioner
mistakenly relied on the  “running mate” system for Reserve officers, which would have
established his date of rank and effective date of promotion as 1 June 1997. They described
as  “misguided” Petitioner’s argument that the 23 September 1997 notification of delay was
defective, because it occurred after his effective date of promotion.
opined that 
message as  “ALNAV [All Navy] 
promotion, the date it was to be delivered, as 1 October 1997. JAM01 concluded that the
23 September 1997 notification of delay was valid. They found no merit in Petitioner
’s
allegation that his delay was a nullity because the notification letter did not state the reason
for his promotion delay; they pointed out that Petitioner ’s notification letter of
23 September 1997 (Tab 11 to enclosure (1)) stated that he need not be promoted if he was
found to be  “professionally unqualified, 
In response to his objection that the delay was effected before Petitioner had been given a
chance to submit a statement, JAM01 further commented that there is no requirement in law
or regulation to consider an officer ’s comment before delaying a promotion. Concerning the
argument that the delay was a nullity because the ASN (M&RA) action of 27 April 1998
(Tab 6 to enclosure  
more than six months after his scheduled promotion date of 1 October 1997, JAM01 stated
that this ignores the fact that Petitioner had submitted a request for an additional delay on
6 March 1998, which was granted on 30 March 1998. Furthermore, JAM01 stated, the
applicable regulation requires only that an extension of a promotion delay be 
“timely.”
Regarding Petitioner’s argument that the failure to submit additional requests for extensions
of delay invalidated the delay and removal, JAM01 stated that neither statute nor regulation
requires such additional requests. Concerning Petitioner’s allegation that the erroneous
reference by SECNAV to removal from the  “selection board report ” instead of the
“promotion list” (Tab 9 to enclosure (1)) made Petitioner ’s removal from the promotion list
invalid, JAM01 opined that this was merely a
validity of the President ’s decision to remove him from the promotion list. Finally,
concerning Petitioner’s removal from the promotion list for DUI, rather than DWI, and the
fact that the Japanese had stricter BAC requirements than the United States, JAM01
concluded that the President removed Petitioner from the promotion list on the basis of the
specific facts of the case, and that his action was in accordance with the United States
Constitution. As counsel had done, JAM01 erroneously cited statutory and regulatory
provisions applicable to active-duty list promotions, rather than Reserve active-status list
promotions.

(l)), which ratified and extended Petitioner ’s promotion delay, occurred

 

scrivener’s error that had no effect on the

4

h.

In correspondence attached as enclosure

 
(3), the HQMC Career Management Team,

Reserve Affairs Manpower Branch, Reserve Affairs Division has commented to the effect
that Petitioner ’s request to remove the failure of selection notation caused by his removal
from the FY 1998 Reserve Lieutenant Colonel promotion list has no merit, because he did
not incur a failure of selection. Title 10, United States Code, section 14310, dealing with
removal from a Reserve active-status list promotion list, includes no language corresponding
to the language in title 10, United States Code, section 629(c)(2) to the effect that if an
officer below the grade of colonel who has been removed from an active-duty list promotion
list fails of selection by the next promotion board to consider the officer, the officer is to be
considered to have twice failed of selection for promotion.

i.

Petitioner’s counsel submitted a rebuttal letter, enclosure

 
(4), to the JAM01 advisory

opinion. He argued that Petitioner ’s effective date of promotion was 1 June 1997, so the
23 September 1997 delay was a nullity, because a delay must occur before the effective date
of a promotion. Counsel stated that 1 October 1997 was merely the delivery date, not the
effective date of Petitioner ’s promotion. Counsel further stated that in accordance with the
applicable law (he erroneously cited title 10, United States Code, section 624(d)(4), but the
same rule is established in the counterpart provision for Reserve active-status list promotions,
title 10, United States Code, section 1431 l(d)) and regulation (he still erroneously cited
SECNAVINST 1420.1 A), a promotion may not be delayed longer than 18 months, so
Petitioner’s removal from the promotion list on 1 June 1999 exceeded the limitation.
Counsel noted that even if the case is.viewed in the light most favorable to the Government,
where Petitioner ’s effective date of promotion is treated as 1 October 1997, the President
18-month delay limitation. Finally, counsel
 
removal action on 1 June 1999 exceeded the
concluded that Petitioner was promoted on 1 June 1997 by 

“operation of law. ”

’s

j.

The memorandum for the record at enclosure (5) shows the HQMC Promotion

Branch has advised that Petitioner initially failed of selection before the FY 1997 Reserve
Lieutenant Colonel Selection Board; that he was selected, despite a failed of selection status,
by the FY 1998 Reserve Lieutenant Colonel Selection Board; and that if he had been
promoted pursuant to selection by the FY 1998 Reserve Lieutenant Colonel Selection Board,
he would have been assigned a date of rank and effective date of 1 June 1997.

k.

In correspondence attached as enclosure

(6), the Office of the Judge Advocate
 

’s case should be denied. OJAG,

General (OJAG) has commented to the effect that Petitioner
which correctly cited the statutory provisions applicable to Reserve active-status list
promotions, stated that since Petitioner was never appointed to the grade of lieutenant
colonel, he does not have an effective date of rank.
placed on the promotion list on 8 September 1997. They stated that because being placed on
a promotion list is a condition precedent to being promoted, Petitioner could not have been
ALMAR 
promoted before this occurred. OJAG said that  
opinion) was released on 26 September 1997, but Petitioner
was no promotion authority, date of rank, or effective date for him.
name appeared on  

319/97, he would have been appointed on 26 September 1997,

319/97 (enclosure (5) to the OJAG
’s name was not on it, so there

OJAG said that Petitioner ’s name was

They stated that had his

ALMAR 

5

the date the message was released, and his effective date of rank would have been adjusted to
1 June 1997. Regarding Petitioner ’s contention that a promotion delay may not exceed 18
months, OJAG stated that while the 18-month outer limit may have been exceeded, this does
not result in promotion by  “operation of law. ” OJAG concluded that there is no statutory
authority for or requirement to promote an officer by  “operation of law ” if notice of delay is
not properly provided, or if the limitation of delay is exceeded.

1.

By letter at enclosure  

(7), Petitioner’s counsel replied to the OJAG advisory opinion.
He maintained that Petitioner warranted promotion to lieutenant colonel with an effective date
of 1 June 1997, the date his active duty running mate was promoted to that grade. He also
noted that not only was the six-month delay period exceeded, but the statutorily mandated
1%month outer limit for delays was exceeded as well.
of this Board, where a promotion delay limitation was exceeded, and the ASN (M&RA)
agreed that the delay period had been exceeded, so the officer received his promotion.
Counsel stated that because the 18-month delay period had been exceeded in Petitioner ’s
case, he was promoted by  “operation of law. ” Counsel noted that in the cas
United States, 42  
that because an Air Force officer had been improperly removed from a promotion list, that
officer was promoted by  “operation of law.  

(1999), a decision the Air Force did not ap

Counsel quoted from a prior decision

Fed.Cl. 782 

”

CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding enclosures
(2) and 

(6), the Board finds an injustice warranting approval of Petitioner

’s application.

In

 

The Board finds that Petitioner is entitled to the requested relief regarding his promotion and
removal of documentation of his promotion delay and removal from the promotion list.
this connection, they find it was unduly harsh to delay his promotion and remove him from
.05 percent. Further, and more
the promotion list for a DUI where his BAC was only
importantly, they note that whether the date on which he would have been promoted, but for
the intervening delay, is considered to be 1 October 1997, as JAM01 believes, or
26 September 1997, as OJAG indicates, the 18-month statutory outer limit on delay expired
before 1 June 1999, when the President acted to remove Petitioner from the promotion list.
While the Board does not embrace the concept of promotion by 
find that affirmative steps should have been taken, when the
 
and Petitioner had not been removed from the promotion list, to effect his promotion
effective 1 June 1997. Since the Board finds that Petitioner
’s promotion should have been
effected before the President acted to remove him from the promotion list, they conclude that
the President’s removal action was a nullity.

18-month period had expired

“operation of law, ” they do

The Board finds that Petitioner ’s failure of selection by the FY 2001 Reserve Lieutenant
Colonel Selection Board should be removed. They note that had he been promoted when
  by
they feel he should have been, he would not have-been eligible for consideration
FY 2001 promotion board.

the

6

,I

The Board further observes that had Petitioner been promoted to lieutenant colonel, he would
not have been removed from active status in the Marine Corps Reserve. Accordingly, they
find that his record should be corrected to show he never lost active status.

Finally, the Board recommends granting Petitioner non-pay point credit at the rate of 50
points per anniversary year, the minimum needed for satisfactory participation, for the period
from his involuntary retirement on 1 April 2001 to the date of his reinstatement to active
status.
In this regard, they note that through no fault of his own, he was unable to earn any
retirement point credit during this period; and they feel this relief must be granted to make
Petitioner as whole as current circumstances permit.

In view of the above, the Board recommends the following corrective action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show he was not removed from the

FY 1998 Reserve Lieutenant Colonel promotion list.

b. That his record be corrected further to show he was promoted to lieutenant colonel

with a date of rank and effective date of 1 June 1997; and that his lineal precedence be
adjusted accordingly.

C. That his record be corrected further to show he did not fail of selection by the

FY 2001 Reserve Lieutenant Colonel Selection Board (leaving his failure of selection by the
FY 1997 Reserve Lieutenant Colonel Selection Board).

d. That his record be corrected further by removing all documentation relating to the

delay of his promotion to lieutenant colonel or his removal from the FY 1998 Reserve
Lieutenant Colonel Selection Board promotion list (OMPF, S fiche continuation, frames
through 14 and  
material relating to Petitioner ’s civil conviction, a matter adequately documented in his
uncontested adverse fitness report for 15 May to 12 September 1997); and C fiche
continuation, frames A3 through 14 and  

Dl through 5; C fiche, frames F7 through 14, and

Bl through 5).

C5
Gl through 14 (including

 

 

e. That his record be corrected further to show that he was not involuntarily removed
from an active status in the Marine Corps Reserve and transferred to the Retired Reserve on
1 April 2001, but remained in an active status after that date; and that he be reinstated to an
active status in the Marine Corps Reserve accordingly.

f.

That his record be corrected further to show he earned non-pay retirement point
credit at the rate of 50 points per anniversary year for the period from 1 April 2001 to the
date of his reinstatement to an active status, prorating as necessary for an anniversary year
beginning before the date of reinstatement but ending after that date.

7

g. That any material or entries inconsistent with or relating to the Board

’s

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

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

to this 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.

It is certified that a quorum was present at the Board

4.
the foregoing is a true and complete record of the Board ’s proceedings in the above entitled
matter.

’s review and deliberations, and that

ROBERT D. ZSALMAN
Recorder

JONATHAN S.  
Acting Recorder

RUSKIN

5. The foregoing report of the Board is submitted for your review and action.

Reviewed and approved:

DEPARTMENT OF THE NAV

Y

OFFICE OF THE SECRETARY

1000 NAVY PENTAGON

WASHINGTON, D.C. 20350-1000

OCT 2 4 2002

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj 

:

REVIEW
USMCR, 

i

’s record b
8

. While I approve th

I  have considered the recommendations of the Board fo

Correction of Naval Records (BCNR) that petitioner
corrected to show that he was not removed from the FY 199
Reserve Lieutenant Colonel promotion list
relief recommended by the Board
Contrary to the BCNR
complied with the time standards required by 10 U.S.C. Sec
14311(d) to effect petitioner
1998 Reserve Lieutenant Colonel promotion list
the particular circumstances of this case, I find tha
petitioner
warranting relief
Lieutenant Colon
which he was not at fault is disproportionate to the offense
Accordingly

’s removal from the promotion list is an injustic

e

,

I approve the relief recommended by the Board

. Depriving petitioner of his promotion t

n the basis of a traffic incident i

,

I do not accept its rationale

,

I find that the Department of the Nav

’s delay and removal from the F

.

However, unde

t

r

.

e

e
.

r

y

Y

e
o

.

n

.

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 

NAVY ANNEX

WASHINGTON, DC 20380-1775

IN REPLY REFER   TO
107 0
JAM01

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CASE OF 
SMCR

MAJO

We are asked to provide an opinion

1.
for removal of all documents relating to his removal from the
Petitioner also
FY98 USMCR Lieutenant Colonel Promotion List.
requests that BCNR recommend action by the Secretary of the Navy
(SecNav)  that would lead to his being reinstated by the
President,
Lieutenant Colonel USMCR Promotion List.

tune, that is, retroactively -- to the FY98

on Petitioner's request

nunc pro 

We recommend that the requested relief be denied.

2 .
analysis follows.

Our

3 .

Background

a.

The FY98 USMCR Lieutenant Colonel Selection Board

(Board) recommended Petitioner for promotion. On
prior to his promotion date,
with Driving Under the Influence
in Okinawa, Japan.
guilty of DUI in Japanese Summary Court and fined the equivalent
of $500.00.

  26 June 1997,
Petitioner was arrested and charged

(DUI) by Japanese authorities

Petitioner was found

On 25 August 1997,

b.

As a result of this misconduct, on 23 September 1997,

On  6 November 1997, the

the Commander, Marine Corps Reserve Support Command, requested
that Petitioner's promotion be delayed.
Commandant of the Marine Corps (CMC) notified Petitioner that he
would make a recommendation to SecNav on whether to approve
Petitioner's promotion delay and, if applicable, whether to
On 8 September
recommend his removal from the promotion list.
1998, CMC recommended that SecNav remove Petitioner's name from
the Promotion List.
recommendation.
States removed Petitioner's name from the FY98 USMCR Lieutenant
Colonel Promotion List.

SecNav approved the
On 1 June 1999, the President of the United

On 19 October 1998,

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CASE OF MAJOR

SMCR

4 .

Analvsis

a.

Petitioner presents two broad arguments in support of

First, Petitioner claims that the Department of

his petition.
the Navy failed to comply in material respects with the
controlling statute and regulation governing delay, thus
rendering Petitioner's delay and subsequent removal a nullity.
Second,
Petitioner argues that the facts and circumstances of
his removal constitute an injustice that warrants correction by
BCNR.
requested relief.

Neither of these claims provides a basis for the

b.

There was no legal defect in the processing of

Petitioner's promotion delay and subsequent removal from the
FY98 USMCR Lieutenant Colonel Promotion List.
Petitioner
incorrectly relies on the "running mate" system for Reserve
Officers, claiming that his effective date of promotion was 1
June 1997 and arguing that-the 23 September 1997 notification of
delay was a nullity because it occurred after his effective date
of promotion.
1420.1A does require
notification of delay prior to the effective date of the
appointment,
Petitioner's effective date of promotion -- i.e., the specific
date the appointment would be delivered -- as 1 October 1997.
Accordingly, the 23 September 1997 notification complies with
the regulation.

unless impractical, ALNAV 

Although SECNAVINST  

319/97  established

C .

Petitioner also argues that his delay was a nullity

because his notification letter did not specifically state the
reason for the delay and because he was not given an opportunity
to comment on the delay before its imposition.
are without merit.
notification letter correctly states that a promotion may be
delayed "if there is cause to believe the officer is
. . 
professionally unqualified"
the delay.
regulation,
imposition of a promotion delay.

Second, there is no requirement, in law or
to consider an officer's comment before the

First, the 27 September 1997 delay

and cites the DUI as the basis for

 

These arguments

.

d.

Petitioner also argues his delay was a nullity because

the Assistant Secretary of the Navy's 27 April 1998 letter
ratifying and extending Petitioner's delay occurred more than 6
months after his scheduled promotion date of 1 October 1997.
This argument ignores the fact that Petitioner had submitted a

2

Subj:

BOARD FOR CORRECTION
IN THE CASE OF MAJOR

SMCR

Moreover, SECNAVINST 

request for additional delay on 6 March 1998, that was granted
on 30 March 1998.
1420.1A paragraph 23(d)
does not impose a requirement that requests for additional delay
be submitted within six-months of the scheduled promotion date,
only that such requests be submitted in a "timely" manner.
Petitioner also argues that his delay and removal were invalid
because additional requests for extensions of delay were not
submitted.
requirement.

Neither statute nor regulation imposes such a

e.

Petitioner next argues that his removal from the

. . 

. from a selection board report."

CMC's request to remove Petitioner from the

promotion list was invalid because SecNav's 19 October 1998
signature approving  
promotion list was appended next to a stamped reference to
"removal 
Petitioner
contends that SecNav's erroneous use of a stamp referring to
"selection board report" vice "promotion list" nullifies the
President's removal of Petitioner from the Lieutenant Colonel
(USMCR) Promotion List.
Because the correspondence forwarded to the President for action
clearly contemplates Petitioner's removal from the Promotion
List, incidental use of the wrong stamp on SecNav's forwarding
endorsement amounts to no more than a  
Furthermore,
the President was the only authority authorized to
remove any name from the FY98 USMCR Lieutenant Colonel Promotion
List, and the President -- by his 1 June 1999 signature -- not
SecNav, ordered that removal.

This argument is without merit.

scrivener's  error.

f.

Finally,

Petitioner argues that his removal from the

Petitioner cites differences between Japanese and
claims that he is the first

Promotion List constitutes an injustice that warrants
correction.
U.S. law governing DUI offenses,
Marine to be removed from a promotion list due to a DUI
incident, and argues that his removal creates a new legal
the removal process in
standard.
Petitioner's case was performed correctly according to law and
regulation.
to remove Petitioner's name was, and should be, based upon the
specific facts of the case and made in accordance with his
authority under the U.S. Constitution.
arguments are without merit.

The decision of the President of the United States

As demonstrated above,

Thus, Petitioner's

Subj:

BOARD FOR CORRECT10
IN THE CASE OF 
MAJO
SMCR

Conclusion.

for the reasons noted, we

5.
recommend that the requested relief be denied.

Accordingly,

4

DEPARTMENT 

OF THE NAV

Y

HEADQUARTERS UNITED STATES MARINE CORPS

~~EORUSSELLROAD

QUANTICO, VIRGINIA 22

  134-5 

103

IN 

REPLY 

REFER 

TO:

1610

24 Apr 00

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

request for

record and offer the
t for removal of failure of
ted for promotion to the
LtCol Selection
8 USMCR 
promotion to Lieutenant Colonel was
'name was removed from the promotion

Subj:

Ref: (a)

1. Recommend disapproval
removal of failure of  

se1

2. We have review

selection.
rank of Lie

list by the President of the United States prior to becoming
effective.

as selected for promotion by the FY-98
Board.
He did not incur a failure of
therefore there is no failure of selection to be

selection,
removed.

act regarding this matter is the undersigned at

Heyd, Career Management Team
Reserve Affairs Manpower Branch
Reserve Affairs Division

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

DATE: 

13JUNOO

DOCKET 

N

PETITIONER (PE

PARTY I CALLED:

SMCR

TELEPHONE NUMBER: (703) 784-9707

WHAT I SAID: I ASK
EFF DATE FROM TH

R PET ’S PROM HISTORY, AND HIS DOR XND
C R LTCOL SEL BD. 

@b

WHAT PARTY SAI
USMCR LTCOL SEL BD. HE WAS SEL ABOVE ZONE BY THE FY-98 USMCR
LTCOL SEL BD, AND HIS DOR AND EFF DATE WOULD HAVE BEEN

ORMED ME THAT PET FOS BEFORE THE FY-97

lJUN97.
 

DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL

WASHINGTON NAVY YARD

1322 PATTERSON AVENUE SE SUITE 3000

WASHINGTON DC 20374-506

6

IN REPLY REFER 

TO

1400
Ser 
3 Jan  01

13/1MA11954.00

Deputy Assistant Judge Advocate
Chairman, Board for Correction of Naval Records

General (Administrative Law)

(a) Your ltr BJG Docket No 404-00 of 5 Jul 00

(1) Legal Analysis
(2) Cover sheet to FY98 USMCR Lieutenant Colonel promotion

selection board

(3) Appointment scroll of 8 Sep 97
(4) ALNAV 
(5) 
ALMAR 

064/97
319/97

\

From:
To:

Subj:

Ref:

Encl:

This responds to your reference (a)

1.
and recommendation on subject case.

request for our comments

Issue.

Wheth
2.
(Petitioner), cou
1 June 

1997?

II, USMCR
on date of

Short answer. No.

3.
the grade of lieutenant colonel, he does not have an effective
promotion date.

Because Petitioner was never appointed to

Discussion.

Through counsel, Petitioner raises several issues,

4.
including the central issue identified above.
provides a detailed legal analysis of the central issue and
addresses Petitioner's procedural claims related to the delay of
his appointment.
reference, as these documents are noted in enclosure

Enclosures (2) through (5) are provided for your

Enclosure (1)

(I) 

-

for this matter is LCDR

I

Issue.

Whet
1.
(Petitioner), co
1997?

Leqal Analysis

CR
of 1 June

Short answer. No.

2.
the grade of lieutenant colonel, he does not have an effective
promotion date.

Because Petitioner was never appointed to

Backqround.

Petitioner was selected for promotion to the grade

The President approved the report of that board

3 .
of lieutenant colonel by the FY98 Marine Corps Reserve promotion
selection board.
on 8 September  
a promotion list.
lieutenant colonel was delayed on 23 September 1997 based on the
commission of the offense of driving under the influence of alcohol
in Okinawa.
name from the promotion list.

On 1 June 1999, the President removed Petitioner's

1987, at which time Petitioner's name was placed on

Petitioner's appointment to the grade of

Petitioner,

Discussion.

through counsel, challenges the

4 .
validity of the appointment delay and removal from the promotion
list and alleges a number of errors.
makes is that his appointment was effective on 1 June 1997 and
therefore could not have been delayed on 23 September 1997.
Petitioner also claims that his appointment was not properly
delayed under applicable law and, therefore, that he was promoted
"by operation of law."

The primary claim Petitioner

a.

Effective date of promotion

(1) Leqal framework for promotion. The promotion of a

whether on the active-duty list or the Reserve
This

military officer,
active-status list,
is an appointment to a higher grade.
fundamental conclusion is evident from statutory language.
Language throughout title 10 of the U.S. Code, denotes a
"promotion" as an
of an appointment has also been recognized by the Supreme Court.
In
mi
concluding that  
this requirement.

United States,
ge to be properly appointed under the Constitution,
tQe appointment as a military officer satisfied
Referring to an active-duty list case, the

"appointment to a higher  

the Court addressed the necessity for a

grade.I12

The necessity

5 14308(a).

l 
See 10 U.S.C.  
I note that Petitioner erroneously states that the board
report was approved by a delegate and that the appointment was confirmed by the Senate.
Because the approval authority of 10 U.S.C.
President personally approved this report.
and consent is not required for appointment to grades below colonel in the Marine Corps
Reserve.
’ See , e.g.,
the President); 10 U.S.C. 
grade is considered accepted unless declined and that a new oath is not necessarily
required "upon appointment to a higher grade");
of an officer who holds a grade as the result of a promotion is the date of his
appointment to that grade").

§ 12203 (stating that an appointment to a higher grade is made by
§ 14309 (stating that acceptance of an appointment to a higher

§ 14111(a) has not been delegated, the
Also, per 10 U.S.C. 

§ 12203, Senate advice

§ 741(d)(2) ("the date of rank

10 U.S.C. 

10 U.S.C. 

nited States, 510 U.S. 163, 169-71 (1994).

t

"10 U.S.C. 

with the advice and consent of the Senate

Court explicitly stated
by the President,
time a commissioned officer is promoted to a higher  
advice and consent of the Senate is not required for certain
Reserve promotions,
promotion of an officer in the military requires an appointment to
a higher grade.

5 624 requires a new appointment
each
While

the conclusion is still valid.

Thus, the

grade.l14

(2) Constitutional considerations.

of an officer is an appointme
Constitution5 is implicated.
Court summarized this

implicat

Because the promotion

se of the
Supreme

all officers of the United States are to be appointed in
accordance with the [Appointments] Clause.
Principal
officers are selected by the President with the advice
and consent of the Senate.
Inferior officers Congress
may allow to be appointed by the president alone, by the
heads of departments, or by the Judiciary.
type of officer is excluded because of its special
functions.6

No class or

Finally, in his concurring opinion i
explained the status of military off
under the Constitution.'
clearly shows that constitutional appointment law applies to
military officers.

This discussion is instructive, as it

Justic
inferi

S

(3) Law of appointments.

The legal effects of an

appointment and the steps necessary to make such an a
well settled since the Supreme Court decide
Marbury, the Court held that there are
In 

"is the sole act of the President;" the

operations necessary to effect an appointment.
nomination, which
appointment, which is also the act of the President "performed by
and with the advice and consent of the Senate;" and, the
commission,
appointment.
has performed the
state that
of appointing the person nominated, are political powers, to be

The Court continued to
"[t]he  power of nominating to the Senate, and the power

yhich may be considered as providing evidence of the

An appointment is only effective when the President

"last act to be 

These are: the

done."l'

t

4 Id. at 170 n.5.

5 U.S. CONST. art. II,

5 2, cl. 2.

4 U.S. 1, 132 (1976).

510 U.S. at 182

(Souter, J., concurring).

5 U.S. 137 (1803).

' Id. at 155-6.
lo Id. at 157.

2

. 

,

exercised by the President according to his own  
Thus, because the appointment power is solely vested in the
President, an appointment may not be compelled by law, by Congress,
or by the judiciary.
Only where the "whole power" of the President
has been applied, and the 
will an appointment arise.
officer will have a legal claim to the office to which appointed.

lfiinal act of an appointment performed,
the

At such point, and not before,

discretion."ii

(4) Promotion procedure.

Procedures for promoting

Senate.r3

While the President may

14 the officers listed
Because promotions
the President's appointment is not

commissioned officers must be determined in accordance with the law
of appointments.
For officers on the Reserve active-status list,
the President appoints officers to grades below colonel, without
the advice and consent of the  
sign an appointment scroll on a certain date
on the scroll are not immediately appointed.
occur throughout a fiscal year,
immediately effective.
Thus, the
establishment of an effective date
In terms of the law of appointments, the "last act to be done" is
to allow the effective date to arrive without delaying or otherwise
interrupting the appointment.
arrives and a projected appointment is not delayed, the appointment
is made and cannot be rescinded.
appointment is delayed before the effective date is established and
announced or before the effective date arrives, then the
appointment has not been made.
decision to exercise the appointment power will be required in
order to make the appointment.

If the established effective date

In such a case, an affirmative

and the arrival of such date.

On the other hand, if the

Fppointment is conditioned on the

(5) Effective date of appointment. As a general principle,

appointments are effective when made.
performed,
determines when an appointment is actually made, statutory
provisions may authorize a subsequent adjustment of effective
date.16

For an officer on the Reserve active-status list who is

When the final act is
While constitutional law

the appointment is made.

I1 Id. at 167.
IL Id.
I3 10 U.S.C. 

§ 12203.

Under 10 U.S.C. 

§ 624(a) 

(2), officers

1427.1C,  the promotion of officers on the Reserve active-status list are tied

"when additional officers in that grade and

Need-based promotion throughout a fiscal year is

S 14308(d) and the implementation of the running mate system through

I4 Per 10 U.S.C. 
SECNAVINST 
to promotions of officers on the active-duty list.
on the active-duty list are promoted
competitive category are needed."
implemented through paragraph 21 of SECNAVINST  
I5 Establishment of the effective date involves determining when a vacancy occurs and
For officers on the active-duty list, this procedure is
announcing the promotion.
explicit in paragraph 21 of SECNAVINST 
status list,
authority messages that can reasonably be considered as
Secretary of the military department concerned"
16
co
has been made.
applied.

Congress may also limit entitlements that are to be retroactively
Implicit in this holding is the conclusion that the appointment must be

the same procedures are implicitly adopted through monthly promotion

ess may provide for retroactive appli

United States, 177 U.S. 20 (1900).

For officers on the Reserve 

"regulations prescribed by the

under 10 U.S.C. 

§ 14308(b)(2).

1420.1A.

1420.1A.

active-

Court
pointment

3

"[t]he  effective date of the promotion of that officer shall

governed by a running mate system, 10 U.S.C.  
that
be the same as that of the officer's
which the running mate is  
of this provision is recognized in 10 U.S.C.  
addresses the consequences
promotion is adjusted to reflect a date earlier than the actual
date of the officer's  
establishment of an effective date is only applicable where an
appointment is actually made.

running mate in the grade to
Retroactive applicability
5 14308(c)(2), which
"if the effective date of the officer's

Thus, retroactive

14308(d) prov

promotion."18

promoted."17

-ides

§

reportlgwas

(6) Application.

The sequence of events is

the promotion selection board  

In Petitioner's case, because he was
never appointed to the grade of lieutenant colonel, he does not
have an effective date of promotion.
that on 8 September 1997,
approved and Petitioner's name was placed on a promotion list.
Because being on a promotion list is a condition precedent to
appointment, Petitioner could not have been actually appointed
prior to this date.
President signed an appointment scroll with Petitioner's name on
it.
establishment of an effective date and announcement of promotion
authority.
319/97 was released,
announcing promotion authority and effective dates for Reserve
officers.
319/97
promotion 
higher grade.
would have been actually appointed on 26 September 1997 and his
effective date of rank would have then been adjusted to 1 June
1997.

As noted above, this appointment was conditioned on the

Because Petitioner's name was not on  

In addition, on 8 September 1997, the

Had Petitioner's name appeared on  

On 26 September 1997,

was20not  authorized and Petitioner was not appointed to a

ALMAR 

ALMAR 

ALMAR 

319/97,  he

b.

Procedural claims related to appointment delay. In

Petitioner asserts that there was

addition to his primary claim,
noncompliance with statutory and regulatory requirements for
delaying appointments.
Petitioner claims that the
initial six-month delay was not extended in a timely manner, that
no period was specified,
exceeded.
10 U.S.C.  
delayed "for more than six months after the date on which the

and that the total limit of 18 months was
Statutory authority for appointment delay is provided by
14311.21 Under this section,
§ 
an appointment may not be

Specifically,

actually made and the consequences of such appointment are then retroactively applied.
If an appointment could be truly retroactive,
not be partially applied.

benefits would be fixed by law and could

I' 10 U.S.C. 

§ 14308(d).

I* 10 U.S.C. 

§ 14308(c)(2).

§ 14308(a).

I9 See 10 U.S.C. 
*’ Petitioner's name did not appear on 
23 September 1997.
*I While SECNAVINST 
officer on the active-duty list,
Reserve active-status list.

ALMAR 

319/97 because his appointment was delayed on

1420.1A provides regulatory guidance for delaying
no comparable regulation applies to

the appointment of
officers on the

4

delay."22

officer would otherwise have been promoted unless the Secretary
concerned specifies a further period of  
outer limit, the section continues to state that "a promotion may
not be delayed more than 18 months after the date on which the
In this case,
officer would otherwise have been promoted."
Petitioner would have been promoted on 26 September 1997 if his
appointment had not been delayed.
period of delay expired on 26 March 1998.
Assistant Secretary of the Navy (Manpower and Reserve Affairs)
extended the delay
consideration of all relevant materials in this  
delay continued until the President removed Petitioner's name from
the promotion list on 1 June 1999.

"as necessary in the public interest, to allow

Thus, the initial six-month

On 26 April 1998, the

case."23

This

Establishing an

C.

Remedial or corrective authority.

that the maximum period of delay authorized by statute was
exceeded,

the result cannot be promotion "by operation of law."

Even if it is determined

(1) Permissible statutory interpretation. As noted by

forces,"25 Congress

Also, under its power

fil124such office; however,

Justice Souter, Congress may establish an office and authorize the
President to appoint an officer to  
Congress may not compel an appointment.
"[t]o provide and maintain a Navy" and "make rules for the
government and regulation of the land and naval  
may establish procedural requirements for promotion or
qualifications for appointment as an officer; however, Congress may
not make or compel the appointment of an officer.
significant constitutional issues would be raised by an assertion
that the relevant statute requires
an important rule of statutory construction must be applied.
rule is that "where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of  
relevant statutory provisions at 10 U.S.C.
above.
for action that is contrary to the statutory requirements.
notably, there is no statutory authority for or requirement to
effect a promotion "by operation of law" in the event that notice
is not provided or the period of delay is exceeded.
consequence is not compelled by statute and raises significant
constitutional issues,
impermissible construction of the statute.

The language of this section does not provide a consequence
Most

implying such a consequence would be an
A more reasonable

"promotion by operation of law,"
This

The
§ 14311(d) are discussed

Congress."26

Because

Because such a

S 14311(d).

*' 10 U.S.C. 
23 Contrary to Petitioner's claim, this specified a
Bounding a period of time by an event and
words, the delay period was not indefinite.
not a certain date reasonably complies with the requirement to specify a "further period
of delay."

"further period of delay."

In other

24 S

510 U.S. at 184

25 U.S. CONST. art. I,

5 8, cl.

13,

14.

. Florida Gulf Coast Building 

& Construction Trades Council,

5

conclusion is that Congress elected to provide guidance for
delaying officer appointments and impose duties on those officials
charged with administering officer promotion programs.

(2) Permissible action.

Just as the courts and Congress

authority2'

authority.27

the Board for Correction of Naval
If the Board were to find

cannot direct an appointment,
Records also has no such  
that Navy action failed to comply with statutory provisions related
to the delay of Petitioner's appointment and that such failure
resulted in an error or injustice,
Board's 
returning Petitioner's name to the promotion list.
name is returned to the promotion list, he could either be
appointed to the higher grade or processed again for removal of his
Alternatively, it would not be unreasonable
name from the list.
for the Board to conclude that the President's final action
removing Petitioner's name from the promotion list rendered any
remedy for claims related to improper delay of appointment

to recommend corrective action in the form of

it is reasonably within the

 

If Petitioner's

moot.2g

Conclusions.

While Petitioner was projected to have an

5 .
effective date of rank based on his position on the promotion list,
because promotion authority was never issued, Petitioner was never
appointed to the grade of lieutenant colonel.
not have an effective date of appointment.
Constitution vests appointment authority in the sole discretion of
the President and his delegates,
operation of law"
constitutional issues,
consonance with this principle.

applicable statutes must be read in

the concept of promotion "by

is not legally supportable.

To avoid serious

Because the

Accordingly, he does

27 See 41 Op. Atty.

Gen. 10 (1958).

28 See 10 U.S.C. 
*’ 

Se

§ 1552.

7 F. Supp. 2d 37, 45 (D.D.C. 2000).

6