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NAVY | BCNR | CY2007 | 01607-07
Original file (01607-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
                                              WASHINGTON DC 20370-5100


BAN
 Docket No. 1607-07
22 April 2008
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD ICO

Ref:     (a) Title 10 U.S.C. 1552
En cl : (1) DD Form 149 w/attachments dtd 21 Feb 2007
 (2)      NAVMC 10132 dated 6 Jul 01
(3)      USMC Fitness Report for Period 20010101 to 20010707
(4)      DD Form 149 dtd 15 Apr 05
(5)      HQMC memo 1070 JAN7 of 26 Jul 05
(6)      HQNC memo 1610 MMER/PERB of 8 Sep 05
(7)      CMC ltr 1610 MMER/PERB of 1 May 06
(8)      Letter from Civilian Counsel,
27 Jun 06
 (9)      BCNR ltr of
 17 Oct 06
 (10)     CMC ltr 1400/3 MMPR-2 of 5 April 07
(11)     Letter from Civilian Counsel, ~ of 24 May 2007
(12)     memo 1400/3 NNPR-2 of 29 Jun 07
(13)     HQMC memo 1400/3 MMPR-2 of 4 Feb 08
(14)     HQMC memo 1400/3 MNPR-2 of 18 Mar 08
 (15)     E-mail of 26 Mar 08 from Personnel Chief, Camp Lejeune, NC
(16)     Petitioner’s naval record
1.       Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that he was selected and advanced to the rank of Gunnery Sergeant as a result of the Fiscal Year 2002 Selection Board cycle vice the Fiscal Year 2005 Selection Board cycle and to remove records related to a non—judicial punishment (NJP) imposed on July 6, 2001.
2.       The Board, consisting of Messrs. Pfeiffer, Zsalman and George reviewed Petitioner’s allegations of error and injustice


Docket No. 01607-07
on March 31, 2008 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. The Board also considered three advisory opinions prepared by Headquarters Marine Corps (HQMC). Those advisory opinions, which are attached as enclosures, recommended that no relief be granted.
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       On July 6, 2001, Petitioner was awarded NJP for violations of Article 128, (Assault), and two specifications under Article 134, (Disorderly Conduct and Communicating a Threat) . He was awarded a punishment of forfeitures of one-half months pay for two months. All of the punishment was suspended. After being advised of his right to appeal the NJP, Petitioner elected not to appeal. See enclosure (2)
c.       Petitioner’s command prepared an adverse fitness report that covered the period from January 1, 2001 to July 7, 2001, which commented on Petitioner’s NJP. Although the observation period ended on July 7, 2001, the command did not finalize the report and provide it to Petitioner until March 2002. Petitioner promptly submitted a rebuttal statement to dispute the comments in the adverse fitness report. See enclosure (3)
d.       In Fiscal Years, 2002, 2003, and 2004, Petitioner was passed over for promotion to the next higher rank of Gunnery Sergeant.
e.       The Fiscal Year 2005 Gunnery Sergeant Selection Board met commencing April 2005.
f.       On April 15, 2005, Petitioner, through counsel, submitted an application to the Board for Correction of Naval Records (BCNR) seeking removal of the January 1, 2001 to July 7,



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2001 fitness report, removal of naval records pertaining to the NJP and a remedial promotion board See enclosure (4)
g.       Petitioner’s request was bifurcated. The portion extending to the request for removal of the fitness report was considered administratively without Board action by HQMC’s Performance Evaluation Review Branch (PERB). The portion extending to removal of the records of the NJP was reviewed and commented upon by HQMC’s Judge Advocate Division, Military Law Branch (JAN-7) for later consideration by BCNR.
h.       On July 1, 2005, Petitioner was promoted to the rank of Gunnery Sergeant as a result of selection by the Fiscal Year 2005 Gunnery Sergeant Selection Board.
i.       On July 26, 2005, JAN-7 addressed the request for removal of the non-judicial punishment. By enclosure (5), JAM-7 recommended that the Board deny the application because it was dilatory and the Petitioner provided no reason for the late filing. JAN-7 noted that the application for removal of the NJP was first filed almost four years after the imposition of punishment. Turning to the merits of the claim, JAM-7 further opined that no legal error occurred in the imposition of the NJP. In particular, JAN-7 found that there was ample evidence of disorderly conduct and communicating a threat, that Petitioner was afforded all of the procedural rights to which he was entitled at NJP, including the right to appeal the imposition of punishment, and that the Petitioner did not in fact appeal. At the same time, JAN-7 also found that the Petitioner had sufficiently demonstrated that the Commanding Officer had set aside the charges of assault (only). Accordingly, JAN-7 recommended a change extending only to correcting the record to reflect the proper charges for which punishment was imposed (i.e. disorderly conduct and communicating a threat only).
j.       On September 8, 2005, the PERB administratively removed the fitness report in question from Petitioner’s naval record. See enclosure (6)
k.       On May 1, 2006, HQMC (Code MM ER/PERB) advised the BCNR of the action taken by the PERB to administratively remove the fitness report and of the advisory opinion of Judge Advocate Division of the Marine Corps (JAN-7). See enclosure (7).



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1.       JAN-7’s advisory opinion was then served upon Petitioner’s counsel. By enclosure (8), counsel responded, essentially, that it is in the interest of justice to consider the request to remove the NJP and that the request should not be considered untimely because, even though the NJP was imposed on July 6, 2001, the fitness report memorializing the NJP was not finalized until April 9, 2002. (Note, the application for correction was signed on 15 April 2005 and received by BCNR on April 25, 2005) . Moreover, Petitioner’s counsel argued, punishment for disorderly conduct was inappropriate inasmuch as Petitioner was acting in self-defense and punishment for communicating a threat was inappropriate because the Petitioner was trying to break up a fight and acting in self-defense and thus his statements did not communicate an actual threat.
m.       On October 17, 2006, BCNR closed the case administratively without Board action because “a preliminary review of ___________ $s military record revealed that his (official naval) record does not contain any documentation concerning the NJP of 6 July 2001.” Inasmuch as the fitness report was not contained in. his Official Military Personnel File (OMPF), BCNR determined that there was “nothing in the record to correct.” The action was taken without prejudice to a future application “if documentation pertaining to the NJP is added to the record.” There is no evidence of any action taken in response to Petitioner’s request for a remedial Selection Board. See enclosure (9)
n.       Subsequently, in view of the PERB’s removal of the adverse fitness report and the absence of a record of the NJP in the naval record, on February 21, 2007, Petitioner, through counsel, submitted the instant application to correct the naval record. See enclosure (1). Noting that Petitioner had been promoted to the rank of Gunnery Sergeant (E-7) on 1 July 2005 as a result of the FY05 Gunnery Sergeant Selection Board, Petitioner now requested that the record be changed to show that he was selected for promotion to the rank of Gunnery Sergeant by the FY 02 Gunnery Sergeant Selection Board and that the effective date of his promotion be backdated commensurate with such a selection. His theory, essentially, is that the failure to select earlier in 2002 was a result of the adverse fitness report that was later removed by the PERB as described above.




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o.       On April 5, 2007, HQMC NNPR-2 prepared an advisory opinion recommending that neither a backdated advancement nor a remedial promotion board be granted. Their reasoning, set out in enclosure (10) essentially is as follows: Marine Corps Regulations governing the Selection Board process stipulate that Marines are expected to use due diligence to identify errors, discrepancies and injustices in their official records and initiate appropriate corrective action before the convening of Selection Boards. Under those regulations, there is no basis for granting remedial promotion consideration where a Marine fails to demonstrate due diligence in seeking correction of errors in the record. Here, Petitioner did not take any action to have his fitness report removed until 15 April 2005, well after the dates of the Selection Boards for which he is seeking remedial consideration.
p.       HQMC MMPR-2’s advisory opinion was then served upon Petitioner’s counsel. By enclosure (11), counsel responded, essentially averring that, in light of all the circumstances, Petitioner exercised due diligence in seeking to remove the adverse fitness report. Counsel noted that Petitioner had deployed three times between 2002 and 2004.
q.       Thereafter, by enclosures (12), (13) and (14) , CMC MMPR-2 reiterated their view that no relief is warranted, either in terms of a remedial board or a backdated advancement because Petitioner did not demonstrate due diligence in seeking removal of the fitness report before the convening of the relevant Selection Boards.
r.       On March 31, 2008, the case was ready for consideration by the Board. At that time, it was determined that while there was still no record of the NJP in Petitioner’s OMPF, an electronic entry in the Marine Corps Total Force System (MCTFS/3270), which is not part of the OMPF, did reflect the NJP. See enclosure (15) . Accordingly, when the case was presented to the Board, consideration was given both to the request made in 2007 to show that Petitioner was selected for promotion to the rank of Gunnery Sergeant by the FY 02 Gunnery Sergeant Selection Board (thereby backdating the effective date of his promotion) and consideration was also given to the request made in April 2005 seeking removal of any records pertaining to the NJP and a remedial promotion board.




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CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants favorable action for the reasons stated below. Regarding the portion of the request extending to a backdated promotion, the Board finds the rationale offered by HQMC to be insufficient. The record is clear that when Petitioner was passed over for promotion in 2002, 2003 and 2004, his naval record contained an adverse fitness report. That adverse fitness report was later found to be in error or unjust by the PERB and was removed from his naval record. Based on the findings and action of the PERB, the Board concludes that the adverse fitness report should not have been part of Petitioner’s naval record when he was considered for promotion in 2002, 2003 and 2004.
Whether Petitioner would have been selected for promotion or not (without the adverse fitness report) cannot be known and is largely a matter of conjecture. A remedial Selection Board could resolve that issue. However, by their advisory opinions, HQMC has determined that no remedial Selection Board is warranted because Petitioner did not demonstrate due diligence in seeking removal of the fitness report before the convening of the relevant Selection Boards. Moreover, when asked to provide substantive comments on the likelihood of whether (or not) Petitioner would have been selected for promotion in 2002, 2003 and 2004 without the adverse fitness report, HQMC has demurred.
In considering the issue of “due diligence,” the Board notes the evidence that the adverse report was not completed until 19 April 2002. The CY 2002 selection board convened very shortly thereafter, leaving almost no time to seek removal of the report. Moreover, evidence exists that Petitioner deployed to Iraq and Afghanistan on three occasions between Feb 2003 and June 2004. Those deployments also may have interfered with Petitioner’s opportunity to seek removal of the report. Thus, the Board is not persuaded that lack of due diligence alone, as proffered by HQMC, is a satisfactory basis to deny a substantive consideration of whether Petitioner would have been selected without the adverse fitness report in his record.
On the issue of whether Petitioner would have been selected earlier without the adverse report, the Board notes that Petitioner’s fitness reports show that both before and after his



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NJP, he was assigned to high tempo units. He graduated from the Staff NCO academy. He participated in Operation Northern Watch and deployed in support of Operation Allied Force and Noble Anvil. He later participated in Operation Enduring Freedom and Operation Iraqi Freedom. He was consistently recommended for promotion and was once even recommended for selection as a Warrant Officer. The Board views these accomplishments as evidence militating in favor of a finding that Petitioner may well have been selected earlier if the adverse fitness report had not been in his record. And with no other compelling evidence or opinions provided by HQMC to rebut this evidence, the Board considers it appropriate to resolve the doubt in Petitioner’s favor. Thus, the Board concludes that Petitioner’s promotion should be backdated to July 1, 2002 which is the date when he was first eligible to promote as a result of the CY 2002 selection board.
Regarding the portion of the request extending to removal of the NJP, the Board finds that there is still no record of the NJP in Petitioner’s OMPF. However, as stated above, an electronic entry in the Marine Corps Total Force System (MCTFS/3270), which is not part of the OMPF, does reflect the NJP. The Board concludes that any reference to the NJP, even in 3270, should be removed for the following reasons. The most serious charge (assault) was set aside and the remaining charges only warranted a suspended punishment. The offenses occurred over almost seven years ago and during that time, the Marine Corps has not entered the NJP into Petitioner’s OMPF. Petitioner has been considered for promotion numerous times with no NJP in his OMPF. Finally, Petitioner’s record of service since the NJP has been exemplary and includes air medals (fourth through seventh awards) for 135 combat missions in Afghanistan and 22 sorties and 91 flight hours in Iraq in support of combat operations. In light of the above factors, the Board concludes that equity demands that any record of the NJP be removed from the Marine Corps Total Force System (MCTFS/3270)
RECOMMENDATION:
That Petitioner’s naval record be corrected, where appropriate, to show that:
a.       Petitioner’s effective date of advancement to Gunnery Sergeant is July 1, 2002 vice July 1, 2005.



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b.       Any record of the non-judicial punishment imposed on July 6, 2001 is expunged from the Marine Corps Total Force System (MCTFS/3270)
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 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                                   WILLIAM J. HESS, III
Recorder                                                      Acting Recorder

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

                           W. DEAN PFEIFFER
                           Executive Director

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