DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BUG
Docket No: 9077-07
7 November 2008

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

 

REVIEW OF NAVAL RECORD |

 

Ref: (a) Tile 10 U.S.C. 1552

Encl: (1) DD Forms 149 (2) dtd 19 Oct and 21 Dec 05, each
w/attachments

HOMC MMER/PERB memo dtd 8 Jan 08
HOMC JAM7 memo dtd 7 Mar 06

HQOMC MMOA-4 memo dtd 1 May 06
Counsel ltr dtd 1 May 07 w/encls
HOMC JAM7 undtd memo

CG ist Mar Div ltr dtd 13 Jun 07
Counsel ltr dtd 12 Sep 07 w/encl
CG II MEF itr dtd 28 Nov 07
}HQMC MMPR memo dtd 12 Mar 08
)HOMC JAR memo dtd 12 May 08
\Counsel ltr dtd 18 Jun 08

3)Memo for record dtd 11 Jul 08
}HOMC MMPR memo dtd 25 Jul 08
)HQOMC MMPR-1 e-mail dtd 30 Jul 08
)Subject’s 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 his naval record be corrected by removing his
adverse fitness report for 18 August to 2 October 2004, a copy
of which ig at Tab A. As shown in enclosure (2), the report has
been removed by the Headquarters Marine Corps (HQMC) Performance
Evaluation Review Board (PERB). He further requested removal of
the HOMC Routing Sheet dated 6 December 2004 with enclosures, a
copy of which is at Tab B (documentation of Petitioner's
withholding and removal from the Fiscal Year (JY) 2006 Colonel.
Promotion List). Ue also requested removal of documentation of
his relie£k from command i Marine Gight Attack Helicopter
Scpuadron. (UMLA) 367. This request was melt considered as ther«
is no reference to his relief outside of the removed adverse
fitness report and the HQOMC Routing Sheet with enclosures. He
also requested removal of his deemed failure of selection by the
FY 2006 Colonel Selection Board, together with his failures of
selection by the FY 2008 and 2009 Colonel Selection Boards. He
further requested reinstatement on the FY 2006 Colonel Promotion
List, as well as promotion to colonel with the date of rank and
effective date he would have received but for having been
withheld from the FY 2006 Colonel Promotion List. Finally, he
requested a special selection board (SSB) for the FY 2006
Colonel Selection Board. His request for an SSB was not
considered as he was selected for colonel by the FY 2006 Colonel
Selection Board, and therefore he is no longer eligible for SSB
consideration.

2. The Board, consisting of Ms. Guill and Messrs. McBride and
Shy, began considering Petitioner’s allegations of error and
injustice on 28 August 2008, and completed deliberations on

22 October 2008. Pursuant to its regulations, the Board
determined that relief should be granted. 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.

ec. On 18 August 2004, Petitioner, as squadron commander of
HMLA 367, deployed to Iraq. He was considered and selected by
the FY 2006 Colonel Selection Board, convened on 9 September
2004. Had he been promoted to colonel pursuant to his
selection, he would have received a date of rank and effective gute
of 1 June 2006. On 2 October 2004, Petitioner was relieved of
his command and flown back to Camp Pendleton, California. He
received an adverse fitness report for 18 August to 2 October

2004 (which has been removed by the HQMC PERB as stated in
paragraph 1 above). This report reflects that Major General

S---, the reviewing officer (RO), decided to relieve him because
of his loss of confidence in Petitioner’s abilities on the basis
of the rate at which his squadron was losing aircraft, which
involved three aircraft mishaps. He also recommended against
Petitioner's promotion. The reporting senior (RS) on the
adverse fitness report, Colonel C---, the Marine Aircraft Group
(MAG) 16 commanding officer (CO), recommended him for promotion
notwithstanding his relief by the RO. On 2 December 2004, the
FY 2006 Colonel Selection List was released and Petitioner’s
name was not on it. By letter dated 13 December 2004,
Petitioner was advised that he was being considered for removal
from the FY 2006 Colonel Promotion List by reason of his relief
from command and the adverse fitness report. By letter dated 7
June 2005, the Commandant of the Marine Corps (CMC) recommended
to the Secretary of the Navy (SECNAV) that Petitioner’s name be
withheld from the FY 2006 Colonel Promotion List. On 16
September 2005, SECNAV approved CMC’s recommendation.
Petitioner subsequently failed of selection before the FY 2008
and 2009 Colonel Selection Boards. Petitioner argues that he
inherited a squadron with severe equipment problems and was
individually blamed for a somewhat high mishap rate during
combat operations in Irag. He also states that he believes he
was relieved of his command because of an inaccurate newspaper
article.

 

d. In enclosure (3), the HQMC Military Law Branch, Judge
Advocate Division (JAM7) has commented to the effect that
Petitioner’s request to be reinstated to the FY 2006 Colonel
Promotion List should be denied. JAM7 stated the adverse
fitness report did not trigger the adverse promotion process,
but rather the fact Petitioner was relieved of command for loss

of confidence.

e. In enclosure (4), the HQMC Officer Counseling and
Evaluation Section, Personnel Management Division (MMOA-4) has
commented to the effect that Petitioner’s request to remove his
deemed failure of selection by the FY 2006 Colonel Selection
Board should be denied. This advisory stated he was withheld
from the FY 2006 promotion list because of the adverse fitness
report (which had not yet been removed), and that without the
report, his record is “obviously competitive.” Petitioner was
not considered by the FY 2007 Colonel Selection Board. This
advisory was written before he had failed of selection by the FY
2008 and 2009 Colonel Selection Boards. He was presented to the
FY 2010 Colonel Selection Board, convened on 9 September 2008.
The results of that promotion board are not yet available.

f. By enclosure (5), Petitioner’s counsel rebutted the
unfavorable advisory opinions that had been submitted to that
point. When this rebuttal was drafted, counsel was unaware that
the PERB would ultimately remove the contested adverse fitness
report. Counsel stated that when Petitioner was removed from
command, Major General S---, the 3d Marine Air Wing (MAW)
commanding general (CG) and RO on the adverse fitness report,
did not consider Petitioner’s relief to be a relief for cause
and never contacted HQMC to have him withheld from the promotion
list. Counsel argued that JAM had no authority to recommend
Petitioner be withheld from the promotion list. He also alleged
that JAM initiated action to withhold Petitioner from the
promotion list without having sufficient information, since the
contested adverse fitness report was not available until after
the removal process was started. Counsel alleged that other
than media reports and the now removed adverse fitness report,
there was no basis to withhold Petitioner from the promotion
list. Counsel concluded that since there were only minor
mishaps, and no personnel or aircraft were lost from
Petitioner’s squadron, there was no basis to withhold him from
the promotion list. Counsel contended that when Petitioner was
withheld from the promotion list, SECNAV had incomplete
information, and was erroneously told that his squadron had lost
aircraft and personnel from mishaps on his watch as CO of HMLA
367. Counsel enclosed a supporting letter from Colonel C---,
Petitioner’s CO who was the RS on the now removed adverse
fitness report, stating that Petitioner was not relieved for
cause, but for a loss of confidence by the CG. The RS stressed
that he recommended Petitioner for promotion. Counsel also
enclosed a letter from Major General S---, Petitioner’s CG who
was the RO on the now removed fitness report, who states that
Petitioner did a number of beneficial things for the squadron.
The CG goes on to state that if the Board recommends that
Petitioner be reinstated to the promotion list, he would support
it. Finally, counsel enclosed a supporting letter from Major
General B---, stating that although he had no firsthand
knowledge of Petitioner’s relief or the now removed adverse
fitness report, it is his opinion that the appropriate standards
were not met in withholding him from the promotion list. He
states that although the CG lost confidence in his abilities to
turn around the squadron’s safety record, this does not make him
unqualified for promotion. He concludes by recommending that
Petitioner be reinstated to the promotion list.

g. In enclosure (6), the HOMC JAM7 provided another
advisory opinion. This opinion commented to the effect that
even though there appears to be no evidence of any error or
injustice in Petitioner’s withholding from the promotion list,
there may be equitable grounds to reinstate him. This advisory

includes the following:
2...). [Petitioner's] relief, and that of the entire
squadron leadership, was apparently undertaken to
send a signal during a period of high accident rates.

That this action had such a deleterious effect on one
individual seemingly for the benefit of a larger Marine

Corps organization, could be considered inequitable,

particularly if other squadron commanders were experiencing
similar or more aggravated difficulties as petitioner [sic]
suggests. Such inequity, if sufficiently established, could
rise to the level of injustice - depending on its extent...

3...Any relief should be granted solely on equitable
grounds...

h. Enclosure (7) is a letter from Brigadier General M---,
who recommends Petitioner for promotion by the FY 2009 Colonel

Selection Board.

i. Counsel submitted another letter, enclosure (8), in
which he complains of what he considers mistreatment of
Petitioner by the chairman of the HQMC PERB. (Note: the

chairman counsel mentions has since resigned from the PERB.)

j. Enclosure (9) is another letter from Petitioner’s former
CG and RO, Major General S---, supporting removal of the now
removed adverse fitness report. This letter reads in pertinent

part as follows:

...3... [Petitioner] made an enormous effort to get his
squadron ready for combat. The time between deployments
for HMLA-367 was compressed from the usual 18 months to 12
months. He took command nine months prior to the
squadron’s deployment, having no night instructors anda
large number of pilots just out of the training command.
His squadron was young and inexperienced to the harshness
of combat; it was the last HMLA in the Marine Corps to
enter theater. Although I originally viewed the minor
mishaps as over confidence [sic] by the pilots, I now view
it as inexperience...These minor mishaps were not the
result of poor leadership or dereliction of duty on the

part of [Petitioner].

4. Removal of the fitness report is a just and proper
outcome. My perspective and perceptions of the situation
which culminated in the fitness report has [sic] changed a
great deal over time. This request is based on a more
precise understanding, and reflects the reality of the
challenges that [Petitioner] and the squadron faced. I
would handle it differently in light of what I now know...

k. In enclosure (10), the HOMC Promotion Branch (MMPR) has
commented to the effect that if this Board reinstates Petitioner
to the FY 2006 Colonel Promotion List, he will receive the same
date of rank and effective date as if he had never been
withheld.

1. In enclosure (11), the HOMC Civil Law Branch, Judge
Advocate Division (JAR) has commented to the effect that
Petitioner’s request to be reinstated to the promotion list has
no merit. This advisory states that once an officer is removed
from a promotion list, the decision is final. The advisory
opines that reinstatement after removal would encroach upon the
President's appointment authority.

m. Enclosure (12) is Petitioner’s counsel’s rebuttal to the
advisory opinion from the HQMC JAR. He stated that this Board
does have authority to reinstate officers on promotion lists and
gave a number of cases where the Board used reinstatement as a

remedy.

n. Enclosure (13) documents the HQMC PERB chairperson
advised that the reason Petitioner’s adverse fitness report had
been removed was the strong support from the RS and RO that he
had not been removed from the promotion list for cause and that
he should be promoted.

o. In enclosure (14), the HOMC MMPR stated it had no
comment regarding the competitiveness of Petitioner’s record or
whether he should be reinstated to the promotion list.

p. Enclosure (15) shows HQMC MMPR-1 advised that Petitioner
failed of selection by the FY 2008 and 2009 Colonel Selection
Boards; that his promotion date from the FY 2006 Colonel
Selection Board would have been 1 June 2006; that since he was
withheld from the FY 2006 promotion list, he was not submitted
to the Senate for confirmation; and that if he were to be
reinstated to the FY 2006 promotion list, “he would have to be
nominated to the Senate (CMC to SECNAV to SECDEF [Secretary of
Defense] to POTUS [President of the United States] to Senate) .”

C
©
CONCLUSION:

Upon review and consideration of all the evidence of record, and
especially in light of enclosures (6) and (9), the Board finds
an injustice warranting the requested relief.

The Board finds that although Petitioner was, in fact, relieved
for cause, specifically loss of confidence, his culpability for
the aircraft mishaps on his watch was insufficient to warrant
his relief or a recommendation against his promotion. In this
connection, the Board particularly notes Major General S---‘s
statement, in enclosure (9), that the “minor mishaps were not
the result of poor leadership or dereliction of duty on the part
of [Petitioner]” and that he “would handle it differently in
light of what [he] now know[s].” The Board also particularly
notes the strong support for Petitioner’s promotion not only
from the RS on the adverse fitness report, but also from Major
General S---, the RO on the report who relieved Petitioner of
his command because of a lack of confidence and recommended
against his promotion. As a matter of equity, the Board
concludes that Petitioner should be reinstated to the FY 2006
Colonel Promotion List, an action that would not encroach on the
President's appointment authority.

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

RECOMMENDATION :

a. That Petitioner’s naval record be corrected by removing
the HQOMC Routing Sheet dated 6 December 2004 with enclosures.

b. That he be reinstated to the FY 2006 Colonel Promotion
List.

c. That he be nominated to the Senate for confirmation (CMC
to SECNAV to SECDEF to POTUS to the Senate).

d. If his promotion is approved, that his record be
corrected further to show that he was promoted to colonel with a
date of rank and effective date of 1 June 2006; and that he did
not fail of selection by the FY 2008 and 2009 Colonel Selection
Boards.

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

f. 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.

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.

Ld eas

W. DEAN PFEREIFCE

Reviewed and approved:
Tyr .
Gaat Cou
M- V1- 08

Robert T. Cali
Assistant General Counsel
Manpower and Reserve Affairs)

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