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NAVY | BCNR | CY2008 | 00356-08
Original file (00356-08.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100





 JSR:kes
Docket No. 00356-08
24 January 2008
From:    Chairman, Board for Correction of Naval Records
To:      Commandant, United States Marine Corps
Sub j :   
REVIEW NAVAL RECORD
Ref:     (a) 10 U.S.C. 1552
End:     (1) Copy of report of proceedings of BCNR less enclosures
1.       In accordance with reference (a), the Board for Correction of Naval Records has reviewed allegations of error and injustice in Subject’s naval record.
2.       The regulations approved by the Secretary of the Navy require that the naval record of Subject be changed, where appropriate, in accordance with the action of the Board.
3.       The Board has advised Subject of the final decision in this case.
4.       It is requested that this Board be furnished a copy of any correspondence relating to the enclosure; and that this letter and a copy of the enclosure be returned to the Board, together with any documentary material directed to be removed.




By direction









DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2NAVYANNEX
WASHINGTON DC 20370-5 100




 JSR
Docket No. 00356-08
17 January 2008
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 Forms 149 (2) dtd 6 Aug 07, each w/attachment
 (2)      HQMC MMER/PERB memo undtd
 (3)      HQMC NNOA-4 memo dtd 7 Jan 08
(4)      Subject’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 by modifying the fitness report for 1 July to 15 September 2000 by deleting the following from section K.4 (reviewing officer’s comments): “-[Petitioner] is a recently promoted Major [sic] filling a billet vacated by an exceptionally gifted officer of intelligence and knowledge. {Petitioner’s] growth as an operation officer will exponentially improve with the advent of the new battalion commander’s staff and operational experience.” A copy of page 5 of the fitness report for 1 July to 15 September 2000, reflecting the section K.4 in question, is at Tab A. Petitioner further requested completely removing the fitness report for 15 September 2000 to 21 May 2001, a copy of which is at Tab B. As indicated in enclosure (2), the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) has directed all the requested corrections of Petitioner’s fitness report record, and the PERB also directed removing the following uncontested material from the section K.4 in question: “-I rank him 4 of 5 operations officers currently within the regiment.” Finally, Petitioner requested removing his failure of selection in the zone before the Fiscal Year (FY) 2007 Lieutenant Colonel Selection Board and his first above the zone failure, by the FY 2008 Lieutenant Colonel Selection Board. After he had submitted his application, he also failed of selection before the FY 2009 Lieutenant Colonel Selection Board. It is presumed he wishes to remove all his failures of selection, so as to be considered by the
selection board that next convenes to consider officers of his category for promotion to the grade of lieutenant colonel as an officer who has not failed of selection to that grade.
2. The Board, consisting of Messrs. W. Hicks, Pfeiffer and Swarens, reviewed Petitioner’s allegations of error and injustice on 17 January 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.
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.       The PERB did not consider Petitioner’s case until 13 December 2007, well after the FY 2009 Lieutenant Colonel Board had met on 5 September 2007. Therefore, his fitness report record before that promotion board was uncorrected.
c.       In correspondence attached as enclosure (3), the HQMC office having cognizance over the subject matter of Petitioner’s request concerning his failures of selection for promotion has commented to the effect that his request to remove his failure of selection by the FY 2007 Lieutenant Colonel Selection Board has merit and warrants favorable action.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting removal of all Petitioner’s failures of selection for promotion. The Board substantially concurs with enclosure (3) in finding the FY 2007 failure should be removed. The Board finds his FY 2008 and 2009 failures should be removed as well, as his fitness report record before both boards remained uncorrected, and his above the zone failures must be removed to restore the status he enjoyed before the FY 2007 board as not having failed of selection for promotion. In view of the above, the Board directs the following corrective action.
RECOMMENDATION.
a.       That Petitioner’s record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to lieutenant colonel as an officer who has not failed of selection for promotion to that grade.
b.       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.
c.       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. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 7 23.6(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.
                                                              

                                                                        W. DEAN PFEIFFER
                                                                                           Executive Director

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