DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

BJG
Docket No: 8059-01
21 February 2002

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered   your application on 21 February 2002.
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this 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 4 and
19 December 2001, copies of which are attached. They also considered your rebuttal letter
dated 9 January 2002.

  Your allegations of error and

Documentary material considered by the Board

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 19 December 2001.
If you are correct, as you assert in your
letter of 9 January 2002, that you were not seen by the Substance Abuse Counseling Office
or counseled by your command, and that your command told you they intended to promote
you, this would not establish that you warranted promotion. 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
MANPOWER AND RESERVE AFFAIRS DEPARTMENT

HARRY LEE HALL, 17 LEJEUNE ROAD

QUANTICO, VIRGINIA 22X34-5104

IN 
REPLf REFER TO:
1400/3
MMPR-2
4 

Dee 01

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

s u

Ref:

OF STAFF SE
MC

(a) CO, 
(b) CMC  
MC0 
(c)  

FinManScol 
ltr 
1400.32C paragraph  

1450/5 MMPR-2 of  

ltr 1430 FMS of  
17Sep99

1201.4d(l) 

22Ju199

(ENLPROMMAN)

Sergea

Staff 

quests that his promotion to

1.
gunnery sergeant be effected,
based on his selection by the 1998 Gunnery Sergeant Selection
Board.
He feels that since his command did not notify CMC to
delay his promotion until after his name appeared on the
MARADMIN  for Staff Noncommissioned Officer promotions for
November, he should have been promoted.

with the original date of rank,

2.
Staff Sergeant
the 1998 Gunnery S
on 1 November 1998.
However, he was not promoted on that date
because he was pending a civil court date for a DWI.
He was
found guilty and convicted for DWI on 20 July 1999.
Following
the conviction, his commanding officer recommended revocation of
his promotion to gunnery sergeant per reference (a).

as selected to gunnery sergeant by
ction Board and was to be promoted

On 17

ommandant of the Marine Corps revoked Staff
name from the 1998 Gunnery Sergeant
his failure to maintain the high standards

of personal and professional performance  
Noncommissioned Officer.

Reference 

(b) applies.

expecOed  of a Staff

Per reference  

3.
effective until a promotion warrant is delivered at an
appropriate ceremony.

(c) enlisted Marine promotions are not

We recommend the petition be denied.

4.

Point of contact

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

2 NAW ANNEX

WASHINGTON, DC 20380-1775

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

BOARD FOR CORRECTION OF NAVAL RECORDS
CASE OF STAFF SERGE

(a) MARADMIN 
(b) 
(c) 

MC0 
MC0 

P1400.32B (MARCORPROMMAN)
P1400.32C (MARCORPROMMAN)

086/98

IN~~~EFER  

TO.

JAM7
19 

DEC 2001

THE
SMC

We are asked to provide an opinion on Petitioner's request that

1.
his promotion to gunnery sergeant be effected, with the original date
of rank based on his selection by the 1998 Gunnery Sergeant Selection
Board.

We recommend that the'requested relief be denied.

Our analysis

2.
follows.

I

2
i.

Background

a.

On 18 February 1998 Petitioner, an active duty staff sergeant,
was arrested by civilian police for Driving Under the Influence (DUI).
On 27 February 1998,
the 1998 Gunnery Sergeant Selection Board message
was released indicating Petitioner's eligibility for consideration for
On 18 June
selection and promotion to the rank of gunnery sergeant.
1998, a message announcing the Board's selections for promotion to
gunnery sergeant was released indicating that Petitioner had been
selected for promotion.
MARADMIN announcing the planned Staff Noncommissioned Officers
promotions for 1 November 1998 was released.
the promotion of specific Staff Noncommissioned Officers, including
Petitioner, by local commanders in accordance with reference (b).

On 16 October 1998, reference (a), the

Reference (a) authorized

b.

On 27 October 1998, the Commanding Officer, Marine Corps
Service Support Schools, notified CMC of her intent to withhold
Petitioner's promotion to gunnery sergeant pending the outcome of
The Commandant of the Marine Corps
civilian court trial for DUI.
(CMC) replied directing Petitioner's commanding officer to submit
required report and recommendations concerning Petitioner's arrest by
27 November 1998.
18 November 1998 setting forth the details of the arrest and
recommended that Petitioner's promotion be withheld until adjudication
On 5 February 1999, CMC
of the pending DUI charges in civilian court.
announced his intent to hold Petitioner's certificate of appointment
to gunnery sergeant in abeyance for 3 months.

Petitioner's commanding officer responded to CMC on

the

the

C .

On 20 July 1999,

Petitioner was found guilty of Driving While

Intoxicated (DWI) by the civilian court.

That same month,

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS
CASE OF STAFF SERGEANT

(BCNR) APPLICATION IN THE
SMC

Petitioner's command recommended that CMC revoke his appointment to
Subsequently, on 17 September 1999, CMC deleted
gunnery sergeant.
Petitioner's name from the 1998 Gunnery Sergeant selection list.

4.

Law

a.

Paragraph 

1201.4(b)(l) of reference (b), states that the

certificate of appointment will not be delivered if the Marine
concerned has failed to maintain the high standards of professional
and personal performance which led to selection (e.g., NJP,  
court-martial, civilian conviction, etc.) or if, in the opinion of the
commander, the Marine will not perform creditably in the higher grade
(warrant will be returned to CMC (MMPR-2).
promotion is not effected (ceremony not held,
on the date of promotion, and the Marine becomes the subject of
disciplinary or substandard performance action,
delivered at the commander's discretion.
to deliver the warrant, he or she must immediately report the
circumstances to the CMC (MMPR-2) via naval message requesting
disposition.

the warrant may not be
If the commander decides not

warrant not delivered)

In cases where the

DWI/DUI,

b.

Paragraph 

1204.3(l) of reference (b) further provides that a
Marine will not be promoted while within 12 months of date convicted
by civil authorities (foreign or domestic), or action taken which is
tantamount to a finding of guilty,
for which the maximum penalty under the UCMJ is confinement for 6
months or more or which involves moral turpitude.

offence in either situation

for an 

Analysis.

5.
gunnery sergeant is without merit.

Petitioner's request for a promotion to the grade of

a.

Petitioner's record adequately and appropriately memorializes
the fact that he failed to maintain the high standards of personal and
professional performance expected of a Staff Noncommissioned Officer.

b.

Petitioner contends that he should be promoted to gunnery

sergeant, despite the fact that he failed to maintain the high
standards of personal and professional performance expected of a staff
noncommissioned officer because (1) his command did not notify CMC of
Petitioner's pending civil action within 10 days of receipt of the
selection 
promotion list,
promoted.

list,l (2) his name appeared on the November 1998 SNCO

and (3) he was led to believe that he was going to get

All three arguments are without merit.

' Petitioner's CO was actually required to report his intent to withhold
Petitioner's promotion warrant   immediately.
Petitioner mistakenly relies on
reference (c), a subsequent version of reference (b), not in effect at the
time Petitioner's CO intended to withhold Petitioner's warrant.

2

Subj:

BOARD FOR CORRECTION
CASE OF STAFF 

SERGEAN

THE
USMC

C .

Petitioner's CO's failure to comply with the notification

(b) regarding intent to withhold

requirements of reference
It is,
Petitioner's appointment to gunnery  
however, irrelevant to CMC's decision whether to promote Petitioner.
CMC's paramount concern in this circumstance is not Petitioner's
disappointment, but 
for promotion to gunnery sergeant, and who fail to maintain high the
high standards of professional and personal performance of a staff
noncommissioned officer, and whose promotion has not been effected,
are not promoted.

.rather it is to ensure that those 

serbeant  is regrettable.

SNCO's selected

d.

That Petitioner's name appeared on the 1998 November list of

planned SNCO promotions, again due to Petitioner's CO's failing to
comply with the notification requirements of reference (b), is also
regrettable.
way overcome CMC's responsibility to ensure that Marines who fail to
maintain the high standards of personal and professional performance
of a staff noncommissioned officer are not promoted.

Again, however, this delay in compliance does not in any

e .

CMC is not obligated to promote Petitioner even though

Petitioner had been previously notified that he was eligible for, and
selected to be, promoted.
effective until a promotion warrant is delivered at an appropriate
A warrant
ceremony by a commander authorized to promote the Marine.
for promotion to the grade of gunnery sergeant was never delivered to
petitioner.

Enlisted Marine promotions are not

f.

Finally, Petitioner does not assert any other procedural or
substantive error on the part of the Marine Corps that would warrant
the immediate retroactive promotion.

Conclusion.

5.
for relief be denied.

Accordingly,

we recommend that Petitioner's request

Judge Advocate Division

3