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NAVY | BCNR | CY2004 | 03925-04
Original file (03925-04.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


                  BJG
 Docket No: 03925-04
29 June 2004


From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:
 REVIEW OF NAVAL RECORD
Ref:     (a) 10 U.S.C. 1552
End:     (1) DD Form 149 dtd 11 Feb 04 w/attachments
 (2)      HQMC MMER memo dtd 12 May 04 w/encl
(3)      MCRC memo dtd 12 May 04
 (4)      Subjects naval record
1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, enclosure (1), with this Board requesting, in effect, that the applicable naval record be corrected by removing there from the fitness reports for 1 January to 1 April 2002, 2 April to 22 June 2002, 23 June to 31 December 2002, 1 January to 30 June 2003, and 1 July to 26 August 2003. Copies of these reports are in enclosure (1) at Tabs A through E, respectively. As shown in enclosure (2), the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board has directed removal of all five contested reports. He further requested removal of three service record page 11 (‘Administrative Remarks (1070)”) counseling entries, dated 27 June 2002, 21 March 2003, and 23 May 2003, each with rebuttal. Copies of these page 11 entries with their rebuttals are in enclosure (1) at Tabs F through H, respectively. He also asked for removal of his relief for cause from recruiting duty approved 2 June 2003 (Tab I to enclosure (1)), and all references to his special court martial of 5 and 18 through 21 August 2003, at which he was acquitted of all counts (Tab J to enclosure (1)). Finally, he requested reinstatement of his recruiter military occupational specialty (MOS) of 8411 and Special Duty Assignment (SDA) pay effective 19 September 2002 until his transfer on
 26 August 2003.
 4



 2. The Board, consisting of      and reviewed Petitioner’s allegations of error and
 injustice on 24 June 2004, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.


3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies 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 began a recruiting duty tour on 20 September 2000 at the Recruiting Station in Pittsburgh, Pennsylvania. He was counseled formally on three occasions, which resulted in the contested page 11 entries. He was also tried by a special court-martial on 5 and 18 through 21 August 2003, but was found not guilty of all charges. Ultimately, he was relieved for cause, which voided his recruiter MOS of 8411 and terminated his SDA pay effective 19 September 2002.
d.       In correspondence attached as enclosure (3), the Marine Corps Recruiting Command (MCRC) has commented to the effect that Petitioner’s request has some merit and warrants limited relief. This advisory opinion includes the following:

2.       It was an ill-advised decision to assign [Petitioner] to recruiting duty under a Humanitarian Transfer. Especially bothersome is that [Petitioner] was expected to perform under assigned mission/quota.
3.       A review of this entire case file places into serious question, the fairness of the situation and environment in which [Petitioner] operated. The proceedings of the Special Court-Martial are read with extreme interest. To have seven charges levied, with multiple specifications under some of those charges, and then to be found ‘not guilty” on all counts, paints a picture of personification of the ‘pile on” theory.



4.       Given the events and circumstances surrounding this case, [MCRC] concludes that it is in the best interests of all concerned, and the fair and just thing, to recommend the removal of all adverse material pertaining to [Petitioner]’s Relief for Cause. This includes, but is not limited to, the challenged fitness
 reports, the Page 11 (entry(ies), and the Relief for Cause package. We do not, however, recommend that his voided MOS 8411 be reinstated and the recoupment of SDA pay since [Petitioner] was not functioning as a recruiter during the time he did not receive SDA pay...








CONCLUSION:
Upon review and consideration of all the evidence of record, the Board finds an injustice warranting complete relief.
The Board agrees with the advisory opinion in concluding that the three contested page 11 entries with their rebuttals, the relief for cause documentation, and all references to the special court-martial should be removed. However, the Board rejects the recommendation against restoring Petitioner’s recruiter MOS of 8411 and SDA pay. The Board particularly notes that the MOS was voided and his SDA pay was terminated because of the relief for cause, which has been found to be unjust.
In view of the above, the Board recommends the following corrective action:
RECOMMENDATION:
a.       That Petitioner’s naval record be corrected by removing the service record page 11 (‘Administrative Remarks (1070)”) entries dated 27 June 2002, 21 March 2003 and 23 May 2003 and the rebuttals he submitted in reply to each entry. This is to be accomplished by physically removing the documents or completely obliterating them so they cannot be read, rather than merely lining through them.
b.       That Petitioner’s record be further corrected by removing all documentation of his relief for cause approved on 2 June 2003.
c.       That Petitioner’s record also be corrected by removing all references to his special court-martial of 5 and 18 through 21 August 2003.
d.       That Petitioner’s record also be corrected to reflect that his recruiter MOS of 8411 was not voided.
e.       That Petitioner’s record also be corrected to reflect that his SDA pay was not terminated effective 19 September 2002, but remained in effect until his transfer on 26 August 2003.
f.       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.
g.       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.







4.       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        JONATHAN S. RUSKIN
Recorder         Acting Recorder

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








 Reviewed and approved:
















































DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
 QUANTICO VIRGINIA 221 34-51 03
         IN REPLY REFER TO:





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BCNR APPLICATION IN THE CASE OF STAFF SERGEANT

End:     (1) Copy of CMC ltr 1610 MMER/PERB of 12 May 04
 (2)      CG MCRC Advisory Opinion 1610 G-1 of 12 May 04
1.       As evidenced by enclosure (1), PERB removed from Staff Sergeant  official military record, the fitness reports for the periods 020101-020401 (CD) , 020402-020622 (CD) , 020623-021231
 (AN) , 030101-030630 (TR) , and 030701-030826 (TR)
2.       We defer to BCNR on the remainder of Staff Sergeant requests. Enclosure (2) is furnished to assist in resolving those issues.
3.       Please note that with enclosure (1), this Headquarters provided Staff Sergeant ith a copy of the Advisory Opinion contained at enclosure (2)



Head, Performance Evaluation
 Review Branch
Personnel Management Division
 By direction of the Commandant
of the Marine Corps












DEPARTMENT OF THE NAVY
HEADQUARTERS United STATE$ MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, Virginia 22134-5103
                  
                          IN REPLY REFER TO:

Subj:    CORRECTION OF NAVAL RECORD
          Ref:     (a)      Your DD Form 149 of 11 Feb 04
                  (b)      MCO lGlO.llC
                  (c)      MCO P1400.32C (Chapter 3)

 End:     (1) CO MCRC Advisory Opinion 1610 G-l of 12 May 04
1.       This responds to your request contained in reference (a).
2.       Per the provisions of reference (b), the Performance Evaluation Review Board has reviewed allegations of error and injustice in your naval record. Having reviewed all the facts of record, the Board has directed that your naval record will be corrected by removing there from the following fitness reports:
          Date of Report                     R~ç~rting Senior          Period of Report
         24       Apr      02             20020101 to 20020401     (CD)
         22       Jun      02                20020402 to 20020622     (CD)
         31       Dec      02                20020623 to 20021231     (AN)
         Ii       Feb      04               20030101 to 20030620     (Cli)
         29       Dec      03               20030701 to 20030826     (TR)
3.       There will he inserted in your naval record a memorandum in place of the removed reports containing appropriate identifying data concerning said reports. The memorandum will state that the )2e4)07rt5 have been removed by order of the Commandant of the Ma rine Corps and may not be made available to selection boards and other reviewing authorities; that such boards may not conjecture or draw any inference as to the nature of the reports. The Performance Evaluation System will be corrected accordingly.
4.       If you believe the fitness reports identified in paragraph 2 above adversely affected your consideration by a regularly

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