DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

BJG
Docket No: 3368-02
27 August 2002

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

Secretary of the Navy

Subj:

SM

Ref: (a)

Title 10 U.S.C. 1552

Encl:

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

DD Form 149 dtd 2 Apr 02 w/attachment
HQMC JAM4 memo dtd 4 Jun 02
HQMC MMER memo dtd 21 Jun 02
HQMC MMPR memo dtd 15 Jul 02
HQMC MMOA-4 memo dtd 13 Aug 02
Subject’s ltrs dtd 23 Jul and 1 Aug 02
Subject ’s naval record  

.

1.
Pursuant to reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure
(1) with this Board requesting, in effect, that his naval record be corrected by removing the
fitness reports for 7 August 2000 to 7 April 2001 and 1 August to 13 September 2001, copies
of which are in enclosure (1) at Tabs A and B, respectively.
documentation of his nonjudicial punishment (NJP) of 19 June 2001 and related material,
including the document dated 9 November 2001 concerning termination of administrative
separation proceedings in his case, copies of which are in enclosure (1) at Tabs C and D,
respectively. He further impliedly requested removing his failure of selection by the Fiscal
Year (FY) 2003 Major Selection Board, so as to be considered by the selection board next
convened to consider officers of his category for promotion to major as an officer who has
not failed of selection to that grade. Finally, he requested a special selection board (SSB).

He also requested removing all

2. The Board, consisting of Messrs. Agresti, McBride and Shy, reviewed Petitioner
allegations of error and injustice on 21 August 2002, and pursuant to its regulations,
determined that the limited 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.

’s

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

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

b. On 15 November 2000, Petitioner received a nonpunitive letter of reprimand for a

 
2oo0, his reporting senior ’s wife received an e-mail

’s government computer. On

fraternization incident. On 14 February
with a pornographic attachment, which was sent from Petitioner
6 April 2001, he was relieved of all duties.
contested fitness report, for 7 August
his transfer. It contains no adverse marks or comments.

On 7 April  

2001, he was transferred. The first
2ooO to 2 April 2001, was submitted on the occasion of
 

c. On 19 June 2001, Petitioner was found guilty at NJP of dereliction of duty involving

the e-mail incident. His NJP appeals were denied on 21 August and 13 September 2001.
The second contested fitness report, for 1 August to 13 September 2001, documents the NJP.
On the basis of the alleged misconduct for which Petitioner received the NJP, he was
considered for administrative separation; however, as the contested document of
9 November  

2001 shows, administrative separation proceedings in his case were terminated.

d. The only contested item considered by the FY 2003 Major Selection Board, which

convened on 30 October 2001, was the fitness report for 7 August 2000 to 7 April 2001.

e.

In correspondence at enclosure  

(2), the Headquarters Marine Corps (HQMC)

(JAM4), the office having cognizance over
 
Military Law Branch, Judge Advocate Division
the subject matter of Petitioner ’s request to remove the NJP and directly related items, has
commented to the effect that this request has merit and warrants favorable action. JAM4
20011 was
states 
 
unfairly influenced by the allegation [that Petitioner sent the e-mail, of which he was
ultimately found not guilty].

.one might conclude that [the-fitness report for 7 August 2000 to 7 April

. . ”

 
”

f.

In correspondence attached as enclosure

 
(3), the HQMC Performance Evaluation

Review Branch, Personnel Management Division, Manpower and Reserve Affairs Department
if Petitioner ’s NJP is removed, they support
(MMER) has commented to the effect that
 
removing the fitness report for 1 August to 13 September 2001, which documents the NJP;
“the Performance Evaluation Review
they state that once removal of the NJP is directed,
Board (PERB) can take action relative to removing the report.
‘I.. . we cannot conclude that [the
7 August 2000 to 7 April 2001 report should stand, stating
 
20011 was unduly influenced by any allegations.
fitness report for 7 August 2000 to 7 April
 
The PERB itself has not considered Petitioner

’s case at all.

” However, they conclude the

”

In correspondence attached as enclosure

 
(4), the HQMC Promotion Branch

(Mh&R), the office having cognizance over Petitioner
NJP was not in his record for the FY 2003 Major Selection Board, and that he has not
exhausted his administrative remedies.

’s request for an SSB, states that the

h.

In enclosure  

(5), the HQMC Officer Counseling and Evaluation Section, Personnel

Management Division (MMOA-4), has commented to the effect that Petitioner
FY 2003 Major Selection Board should be removed, if the NJP and the reviewing officer
comments and marks in the fitness report for 7 August 2000 to 7 April 2001 are removed.

’s failure by the

.

2

i.

In his two nearly identical letters at enclosure

(6), Petitioner contends that because of

 

the adverse action pending against him when the FY 2003 Major Selection Board met, he
would have been removed from promotion consideration; that he has exhausted his
administrative remedies regarding an SSB; and that he must have an SSB to have justice.

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of
enclosures (2) and  
removal of the NJP and the documentation of the administrative separation proceedings.

(3), the Board finds an injustice warranting limited relief, specifically,

The Board agrees with the advisory opinion from JAM4 in concluding that Petitioner
and the administrative separation documentation should be removed. They find that the
PERB should consider his request to remove the fitness report for 1 August to
13 September 2001, which documents the NJP, in light of this Board
removal of the NJP.

’s action directing

’s NJP

The Board agrees with MMER in finding the fitness report for 7 August 2000 to
7 April 2001 should stand. They particularly note that a fraternization incident occurred
during the reporting period, and that the report contains nothing adverse. Notwithstanding
their decision to deny Petitioner
should consider this request as well,
NJP. They note the PERB, as an independent administrative body, could find this request has
merit, particularly in view of the JAM4 comment that one might conclude this report was
unfairly influenced by a charge of which Petitioner was ultimately found not guilty.

’s request to remove this report, they find that the PERB

in. light of this Board

’s action directing removal of the

 

The Board finds that Petitioner
as well, because the fitness report for 7 August
by the promotion board; the other contested matters were not seen; and Petitioner was not
removed from consideration, but rather failed of selection.

’s failure by the FY 2003 Major Selection Board should stand
2000 to 7 April 2001 was properly considered

 

Since the Board finds that Petitioner
they have no grounds for granting an SSB.

’s failure by the FY 2003 Major Selection Board stands,

In view of the above, the Board directs the following limited corrective action.

RECOMMENDATION:

a. That Petitioner ’s record be corrected by removing all documentation of or reference

to his NJP of 19 June 2001 and his administrative separation proceedings whose termination
was announced by correspondence of 9 November 200 1.

b. That the HQMC PERB consider Petitioner

’s requests to remove the fitness reports

for 7 August 2000 to 7 April 2001 and 1 August to 13 September 2001 in light of this

*

3

Board’s action, at recommendation a above, directing removal of the NJP documented in the
fitness report for 1 August to 13 September 2001.

C.

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

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

’s

’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.

e. That Petitioner’s requests to remove the fitness report for 7 August 2000 to

7 April 2001, remove his failure by the FY 2003 Major Selection Board, and grant him an
SSB be denied.

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.

ROBERT D. ZSALMAN
Recorder

JONATHAN S.  
Acting Recorder

RUSKIN

Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of

5.
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.

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JSR/BJG
Docket No: 336802
28 August 2002

From: Executive Director, Board for Correction of Naval Records
To:

Commandant of the Marine Corps

TION IN THE CASE 0

Encl:

(1) BCNR rept in Subject ’s case dtd 27 Aug 02 less  

encls

1. Enclosure (1) was forwarded for your action.

2. In order to ensure proper implementation, the Board
enclosure (1) is hereby amended to read as follows:

’s  “RECOMMENDATION”  at

a. That Petitioner ’s record be corrected by removing all documentation of or

reference to his NJP of 19 June 2001 and his administrative separation proceedings whose
termination was announced by correspondence of 9 November 2001. In this c
s report for 1 August to 13 September 2001, signed by Lieutenant
MC, dated 10 October 2001, submitted for the purpose of docum

is to be amended as follows:

(1) Section A, item 5.a (Adverse): Remove

 

“X.”

(2) Section A, item 6.c (Disciplinary Action): Remove 

“X.”

(3) Section I (Directed and Additional Comments): Remove the following:

- MRO rec ’d NJP from CG, 4th MAW dtd 25 June 01 and was found

(a) 
guilty of Article 92 charge. His appeal to COMMARFORRES was
denied on 13 Sept 01, precipitating this DC report.

(b) Sect A, Item  

6c: MRO Rec ’d NJP of CG, 4th MAW dtd 25 June 01.

(4) Section J (Certification), item 2:
Re
statement,” signature of Marine reported o
(2001 10 10) of signature of Marine reported on.

w

(5) Section K (Reviewing Officer Comments):

(a) Item 4 (Reviewing Officer Comments): Remove the following:

I believe this officer stumbled. But, he picked himself up and should
ultimately be promoted.

“X”
(b) Item 6: Remove
signature of Marine report
(2001 10 16) of signature o

 

statement, 
d date

”

(6) Section L (Addendum Page): Remove

 

“X” indicating  “Yes.”

(7) Remove the two-page Addendum Page reflecting the MRO statement,

(8) Remove the Addendum Page reflecting the 3rd Officer sighting.

3. The regulations approved by the Secretary of the Navy require that the naval record of
Subject be corrected, where appropriate, in accordance with the recommendation of the
Board.

copy to:
Capt Noble

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 

NAVY  ANNEX

WASHINGTON, DC  

203-1775

IN REPLY REFER 

TO-

107 0
JAM4
1:s 
:, 

( 

‘..

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS

1.
We are asked to provide an opinion on Petitioner's request
for the removal from his service record book (SRB) and official
military personnel file (OMPF) of all entries related to the
non-judicial punishment (NJP) he received on 25 June 2001.
this NJP is removed,
promotion board be convened to consider his selection to the
grade of major.

Petitioner also requests that a special

Once

We recommend that Petitioner's request for relief be granted

2.
in part.

Our analysis follows.

3.

Background

a.

Allegations of misconduct arose after the wife of

Petitioner accepted, and the

4th Marine Aircraft Wing (MAW),

Petitioner presented extensive evidence that tended

Petitioner's commanding officer received pornographic images
from Petitioner's Government electronic mail (E-mail) account.
After a preliminary inquiry,
Petitioner was notified that the
Commanding General (CG),
intended to hold NJP proceedings.
NJP was held on   25  June  2001.
not guilty.
to establish that he did not send the E-mail in question, along
with other evidence of good military character.
The CG, 4th
MAW, found Petitioner not guilty of all charges dealing with
accessing,
his Government computer or E-mail account.
did, however,
awarded him a Letter of Censure.
The factual and legal bases
for the allegation of dereliction of duty for which Petitioner
was punished are the subject matter of our analysis.

storing, displaying or distributing pornography on
MAW,

find Petitioner guilty of dereliction of duty and

The CG, 4th 

At the NJP,

Petitioner pleaded

b.

The allegation of dereliction of duty for which

Petitioner was punished read:

Subj:

BOARD FOR
ICO CAPTA

LICATION
MC

USMC, Marine Wing Support

), at Naval Air Station,
Pennsylvania,

In that Captain
Squadron 474
(-), Marine Wing Support Group 47, 4th Marine
Aircraft Wing, Marine Forces Reserve, while on active duty,
who knew of his duties as the Officer-in-Charge (OIC,  
474(-) 
Grove,
or the surrounding community,
about January to February 2001, was derelict in the
performance of those duties in that he willfully failed to
properly use a U.S.
official or authorized purposes only, as it was his duty to
do, by accessing, storing, displaying, or distributing
pornographic images to subordinate personnel or civilian
dependent family members of superior servicemembers.

Joint Reserve Base, Willow
from

Government computer and its network for

MWSS-

C .

At the NJP hearing,

the CG found Petitioner guilty of

account.2

After several factually

Nevertheless, the record clearly reflects that the CG

the specification above without any exception or substitution of
language.
found Petitioner not guilty of all allegations of accessing,
storing, displaying or distributing pornography on his
Government computer or E-mail account.
inaccurate and unfairly prejudicial characterizations by the
command about what actually took place at NJP, the command's
current explanation is that the CG found Petitioner guilty of
negligently1 permitting other Marine
dereliction of duty by  
personnel to use his password and access his Government computer
and Government E-mail  
Letter of Censure, the CG,
dereliction permitted others to access, download, and store
pornographic materials on his Government computer, and allowed
unknown individuals to send pornographic materials from his
Government E-mail account.
4.
occurred in the imposition of Petitioner's NJP.
specification of which Petitioner was found guilty fails to
properly allege an offense under the UCMJ.
committed error by punishing Petitioner for an offense of which
he was not notified.

Material legal error resulting in injustice

Third, the report of NJP and related

In the latest version of the

4th MAW, commented that Petitioner's

Analysis.

First, the

Second, the CG

1 Paragraph 3 of the Letter of Censure dated 27 August 2001 (Tab P of
Petitioner's request) reads "negligently, if not willfully," which we take to
fwnd that Petitioner was negligent, he suspected, but
mean that while the CG 
was not prepared to formally find, a willful dereliction.
2 See Paragraph 2(a) 
(1) of the Letter of Censure dated 27 August 2001 (Tab P
of Petitioner's request).

2

Subj:

BOARD FOR
ICO CAPTA

PPLICATION
USMC

papers do not comply with regulations and they do not fairly or
accurately reflect Petitioner's conduct.

a.

The specification fails to properly allege an offense

under the UCMJ.

(1) The specification alleges that Petitioner was

. 

. 

. 

\\ 

 

. . 

derelict in his duty to
. properly use a U.S. Government
computer and its network for official or authorized purposes
only 
duty Petitioner had, but negligently failed to perform.
by use of the term "authorized" in this context, the
specification seems to impose a generalized duty to obey the
law.

This language fails to enumerate the particular

This is legal error.

.II

Rather,

(2)  Paragraph 

as follows:

16c(3) (c) of the MCM defines "derelict"

.

A person is derelict in the performance

(c) Derelict
of duties when that person willfully or negligently
fails to perform that person's duties or when that
person performs them in a culpably inefficient manner.
"Willfully' means intentionally.
It refers to the
doing of an act knowingly and purposely, specifically
intending the natural and probable consequences of the
act.
person who is under a duty to use due care which
exhibits a lack of that degree of care which a
reasonably prudent person would have exercised under
the same or similar circumstances.
inefficiency" is inefficiency for which there is no
reasonable or just  

"Negligently" means an act or omission of a

"Culpable

excuse.3

(3)  Military Courts have recognized three possible bases
(1) when a person willfully fails to

for dereliction of duty:
perform that person's duties;
(2) when a person negligently
fails to perform that person's duties; and (3) when a person
performs that person's duties in a culpably inefficient manner.
The first two bases center on the concept of failure to perform,
which connotes inaction,

nonperformance or nonfeasance of a

.

3 Dereliction is defined as
Random House College Dictionary, Revised Ed., at 358.

"deliberate or conscious neglect; negligence." The

3

Subj:

BOARD FOR
ICO CAPTAI

PLICATION
SMC

with the former carrying a more severe maximum

Such nonperformance can either be deliberate or

duty.
negligent,
punishment because it involves a flaunting of authority.
third basis involves some performance,
faulty without reasonable cause or excuse.
of dereliction of duty under Article 92, UCMJ, the service
member may be held accountable for either nonperformance or
faulty performance of  

The
but performance that is
Thus, to be guilty

duty.4

(4)  

e  accused was
ul dereliction of duty

breast and pelvic examinations

In
convicted of th
"in that he willfully conducted"
"which he was not authorized to do."
These specifications,
instead of alleging nonperformance or faulty performance of a
duty, alleged that the accused committed acts beyond the scope
of his duties, i.e.,
breast and pelvic examinations of females.
The evidence indicated that the accused did not fail to perform
his essential duties in conducting examinations of patients or
that he performed his duties in a culpably inefficient manner,
but rather that he deliberately exceeded what he was permitted
to do by committing indecent assaults and maltreating patients.
The court wrote,
dereliction of duty was ever intended to be used so broadly so
as to encompass acts committed which go beyond the scope of
one's duties.
cited one to us, which has ever upheld a conviction of
dereliction of duty under such a theory.
alternatives that could be used to charge crimes for exceeding
one's authority, such as disobedience of an order.
we will set aside the guilty findings of the

We are aware of no case, and counsel have not

"We do not believe that the offense of

Therefore,
charge."5

Moreover,

there are

 

. . . 

(5)  Thus,

defining Petitioner's duty as a duty to use
his computer and its network for authorized purposes only, was
error.
viewing or sending pornography is not in itself a dereliction of
one's duty (but may constitute a violation or disobedience of an
order).

Exceeding authorized use of a Government computer by

b.

The CG committed error by punishing Petitioner for an

offense of which he was not notified.

,M.J.,,  603,

610 

(N.M.C.C.A.  1996).

4

Subj:

BOARD FOR
ICO CAPTA

PLICATION
SMC

(1) The Manual for Courts-Martial (MCM), Part V,

Paragraph 4(a) (2) requires that,
the NJP authority must notify the servicemember of the
allegation(s) by providing
offenses
is alleged to have committed."

- including the article of the code  

"a statement describing the alleged

prior to the imposition of NJP,

- which the member

(2)  The specification at issue alleged dereliction of
Petitioner's duty to "properly use a U.S. Government computer
and its network for official or authorized purposes only" by
"accessing, storing, displaying,
images to subordinate personnel or civilian dependent family
members of superior servicemembers."

or distributing pornographic

(3)  The CG apparently found Petitioner guilty of

The CG also found that Petitioner was

dereliction of a different duty, namely,
computer password.
derelict in this newly described duty by committing entirely
different acts.
notify service members of the alleged offenses, prior to
imposition of NJP, precludes substitution of this kind, which
created an entirely different offense against which Petitioner
was not prepared to  

This was material error.

The requirement to

defend.6

a duty to safeguard his

C.

The report of NJP and related papers do not comply with

regulations and they do not fairly or accurately reflect
Petitioner's conduct.

(1) The report of NJP, dated 3 October 2001, falsely
asserts that Petitioner sent the E-mail containing pornography
to his commanding officer's wife.
readers to believe that SNO wrongfully accessed, stored,
displayed or distributed pornography on his Government computer.
The report then inappropriately includes references to an
unrelated allegation of fraternization, and falsely suggests
that Petitioner was guilty of this misconduct as well.

The report also misleads its

Finally,

6 It is noteworthy that the command's description of Petitioner's duty and the
underlying derelict acts changed often and over time.
fairly apprises  a service member of the allegations against him is required
so that he may decide whether to accept or refuse NJP and prepare his defense
(if any).
Moreover,
NJ.P appeal makes clear that when offered his first
opportunity to address the allegation that he was derelict in his duty to
safeguard his computer password,
and cogent arguments in response.

Notification is not satisfied by a  post hoc rationalization.
Petitioner‘s 

Petitioner presented numerous relevant facts

Notification that

5

Subj:

BOARD FOR
ICO CAPTA

PLICATION
SMC

the report conveniently omits any reference to the action taken
on 27 August 2001 (as the result of appeal) to correct these and
other inaccuracies contained in earlier versions of the Letter
of Censure.

(2) Due to the numerous inaccuracies contained within

the report of NJP and related papers, we counsel that the
presumption of regularity of the official actions of public
officers should not be applied in this case.

We have reviewed Petitioner's OMPF and determined that no

5.
adverse information directly concerning this incident was before
the Fiscal Year 2003 Major USMC Selection Board, which convened
on 30 October 2001.

a.

The fitness report covering the time period from 1

August 2001 to 13 September 2001,
Petitioner's NJP, was included in Petitioner's OMPF on 13
November 

which specifically addresses

2001.7

b.

The fitness report covering the time period from 7

This report was before the Major selection board.

August 2000 to 7 April 2001 was signed by the reviewing officer
on 19 May 2001, about 1 month after Petitioner's relief for
cause.
Petitioner's relief for cause was precipitated by the receipt of
pornographic material by the commanding officer's wife, an
offense of which Petitioner was ultimately found not guilty.
Although the report is silent about this incident, one might
conclude that this report was unfairly influenced by the
allegation.
this office.

This, however, is a judgment beyond the purview of

Conclusion.

Accordingly, we recommend that the requested

6.
relief be granted in part.
should be removed from Petitioner's records.
opinion regarding whether Petitioner ought to be granted a
special selection board.

The NJP and all related papers
We offer no

' Per phone conversation 

Gith  Manpower Management Support Branch.

Judge Advocate Division

6

DEPARTMENT OF THE NAV

Y

HEADQUARTERS UNITED STATES MARINE CORPS
D

3280 RUSSELL ROA

OUANTICO.  VIRGINIA  22134-51  03

IN REPLY REFER TO:

1610
MMER
21 Jun 02

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BCNR APPLICATION

IN THE CASE OF CAPT

USMC

Ref:

(a) Your 

It

-02 of 11 Jun 02

In the referenced letter,

we have been asked to comment on
1.
what action should be taken concerning subject's fitness reports
for the periods 1 August to 13 September 2001 and/or 7 August
2000 to 7 April 2001 20 December 2000 to 1 February 2001   if the
removed.
nonjudicial punishment   (NJP) recorded therein should be  

Clearly, the only item of substance in the "not observed"

2.
fitness report for the period 010801 to 090913 (DC) concerns the
imposition of NJP.
NJP, then elimination of the fitness report is warranted.

If action by BCNR results in removing the

Since the NJP is still present in subject's record, it would

3.
be premature at this time for this Headquarters to initiate
action to eliminate the fitness report.
directs removal of the NJP,
Board 

(PERB) can take action relative to removing the report.

However, once BCNR
the Performance Evaluation Review

Not withstanding the documentation included with subject's

4.
Application for Correction of Military Record or the Advisory
Opinion furnished by the Staff Judge Advocate to the Commandant,
we cannot conclude that subject's fitness report for the period
000807 to 010407 was unduly influenced by any allegations. We
also find nothing to show precisely how or why Captain-
rated more than what has been recorded in that evaluation.

Head, Performance Evaluation
Review Branch
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the
Commandant of the Marine Corps

DEPARTMENT OF THE NAVY

IIISADQUARTERS  UNITED STATES MARINE CORPS
MANPOWER AND RESERVE AFFAIRS

 

HARRY 

IXE 

H?il,L,  17 

LEJEI~NE 

QI!ANTICO.  

VIRGINI. 

221.W5lW

DEP.4RTMEN’l
ROAD

IN REPLY REFER TO

1412/2
MMPR
JUL 

15  2002

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

BCNR APPLICATION IN THE CASE OF  

USMC

CAPTAI,

(a) MMER Route Sheet of  21 Jun 02
(b) BCNR memo  dated 04 Jun 02
(c) SECNAVINST 
(d) 

P1400.31B

1401.1B

MC0 

1.  Re
Captai
Judici
period of 010801 to 010913.
special selection board.
 

) requ
Captai
ent 
(N

.

visory opinion in the case of
requesting the removal of Non
s from a fitness report for the
s also requesting a

Captain

2.

The following facts are germane to this case:

a.

Captai

s eligible and not selected as an in
zone officer on the FY03 USMC Major Promotion Selection Board,
which convened on 011030.
officer for the FY04 USMC Major Promotion Selection Board, which
is scheduled to convene on 020904.

He is eligible as an above zone

b.

Per reference (b), Captai
the period of 010801 to 010913 wa
Official Military Personnel File until 011113.
USMC Major Promotion Selection Board that convened on 011030
never reviewed this report,
of concern.

fitness 
rep0
ed in Captai

which specifically addresses the NJP

Thus, the FY03

C .

References (c) and  

(d) provide guidance on the steps an

officer must take to request a SSB.
exhausted these administrative remedies.
he should follow the steps outlined in references (c) and (d).

If he desires an SSB

as not

Capta

Promotion Branch defers comment on the removal of NJP

3.
comments to the Persannel Management Support Branch.

\

\

Subj:

THE CASE OF CAPTAIN'

atter i

Head, Promotion Branch

. Marine Corps

DEPARTMENT OF THE NAV

HEADQUARTERS UNITED STATES MARINE CORPS
D

3280 RUSSELL ROA

QUANTICO.  VIRGINIA 221 34-51 0

Y

3

IN REPLY REFER TO:

1600
MMOA-4
13 Aug 02

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

N FOR CAPTAIN 

MATTH

of 8 Aug 02

(b) BCNR memo AEG 3368-02 of 11 Jun 02

Recommend approval of Capta

1.
removal of his failure of selection only if the NJP and the
Reviewing Officer comments and marks on the report from 000807
to 010407 are removed from his record.

mplied request for

Per reference
Captai

2.
petition.
Selection Board.

iewed Captai
ed selection

ecord and
3 USMC Major

Per reference (b),

3.
010801 to 010913 was before the board and therefore it is not
material to the removal of Captai,

it is extremely unlikely that the report from

ailure of selection.

In our opinion,

4.
the report from 000807 to 010407 contains competitive concerns
that may have contributed to the failure of selection.
of these comments and marks would increase the competitiveness

the Reviewing Officer comments and marks on

Removal

record.

All of the prior reports in Captain

were completed before to the incident that

ated the NJP and therefore should not be influenced by
With the comments and marks on the report from

the incident.
000807 to 010407 removed, Captai
considerable competitive jeopard

ecord still contains
llowing areas:

a.

to 991211 are a competitive concern.

Comments  an
the report from 990801
When compared to the comments received by his peers being
selected for promotion,
judgment in dealing  
seven of eight of all the Capt I&I's I review" remain a
competitive concern.
Comparative Assessment remains below his peers with zero marked
below him and 12 marked above him.

Additionally, the Reviewing Officer

nI'rn still anticipating maturity of

pith higher 

The comments on

HQ" and "four of four as HQ I&I,

ON FOR CAPTAIN  
SMC

MATT

b.

Comments fro m

.The comments on the report

from 991212 to 001001 are a competitive
to the comments received by his peers being selected for
promotion,
commands" and "Undecided about future in the Corps" remain a
competitive concern.

"Has improved in personal relations with co-located

concern.

When compared

In summary,

the removal of the  

Cap

Revie%ing  Officer comments

5.
and marks on
competitiveness of
his record c
believe Capt
doubt and recommend approval of his implied request for removal
of his failure of selection if the NJP and the Reviewing Officer
comments and marks on the report from 000807 to 010407 are
removed from his record.

to 
ecord.
competitive concern, we
areas 0
l?l be afforded the benefit of the

010407 would improve the
Though we recognize

6.

POC 

i

Head, Officer Counseling and
Evaluation Section
Personnel Management Division

2