DEPARTMENT OF THE NAVY

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

Docket No: 3368-08
3 June 2009

 

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

 

Subj: REVIEW OF NAVAL RECORD OF

 

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

Encl: (1) Case Summary
(2) US Dis Ct for DC {Civil Action No. 06-2219 (RBW) dtd
3 Apr 08

3} HQMC JAM2 memo dtd 25 Sep 08
(4) OJAC memo dtd 20 May 09
5) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner's
case was remanded to the Board for further consideration by the
United States District Court for the District of Columbia. He
originally requested to be retired in the grade of lieutenant
colonel (ltcol, paygrade O-5) vice major (maj, paygrade 0-4} on 1
September 2002.

2. The Board, consisting of Mr. gt sj, Wand Mr.

reviewed Petitioner's Sllevations ” SE error and
anjustice on 27 May 2009 and, pursuant to its regulations,
-Getermined 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 thé 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. Petitioner, then a ltcol, received nonjudicial
punishment (NUP) on 29 December 2000 for possession and lying
about the possession of unregistered firearms, multiple charges
of physically abusing his step children and disobedience of an
order not to have any contact with his wife. He pled guilty to
these offenses as part of an agreement not to refer the charges
to a court-martial. The punishment imposed was a punitive letter

of reprimand and forfeitures of pay.

c. Subsequently, Petitioner was directed to show cause for

pO
retention in the Marine Corps at a Board of Inquiry (BOI). The
. BOI convened on 27 June 2001 to determine if he should be
involuntarily retired and whether he should be retired at his
then current grade of Itcol or a lesser grade. The BOI
unanimously recommended that he be involuntarily retired in the
grade of ltcol. In his endorsement, the Deputy Commandant for
Manpower and Reserve Affairs noted that Petitioner had a 1996 NJP
for a confrontation with Air Force Military Police in Italy.
Subsequently, the Assistant Secretary of the Navy (SECNAV)
directed involuntary retirement in the grade maj. He was retired
on 1 September 2002 in the grade of maj.

d. Subsequently, this Board considered the NUP and
retirement issues in two separate cases and each was denied in
large part based on unfavorable advisory opinions from
Headquarters Marine Corps.

e. On 3 April 2009, the United States District Court for
the District of Columbia ruled that the Board had erred when it
relied upon a legal opinion that concluded that the BOI's
consideration of misconduct more than five years. old was proper
as long as it was not the sole basis for it's decision (enclosure
(2)). The judge remanded the case to the Board stating, in part,
as follows:

...The BCNR [The Board for Correction of Naval Records]
concluded (wrongly) that the BOI committed no error
whatsoever in issuing its recommendation of separation.
It has not had the opportunity to determine whether the
error identified by the Court in his memorandum opinion
warrants the removal of the plaintiff's involuntary
retirement and grade reduction altogether. Ultimately,
the Court may or may not find the BCNR's decision in
this regard to have met the minimal procedural
requirements necessary for affirmance, but it would be
remiss to deny the BCNR the opportunity to make that
determination in the first instance. The Court will
therefore remand this case to the BCNR for further
consideration as to whether the plaintiff's
applications [sic] for correction of his military
records should be granted in light of the Court's
analysis in this memorandum opinion...

f. On 25 September 2008, the Headquarters Marine Corps,
Military Law Branch provided an advisory opinion in this case
{enclosure (3)}. The opinion recommended that the Board reassess
the retirement grade decision made previously and consider
restoring Petitioner to the retired grade of ltcol from the
effective date of his original retirement, 1 September 2002. It
was further recommended that the Board contact the Office of the
Judge Advocate General (OJAG), U.S. Navy, for its additional
guidance on the interpretation of the Court's opinion and
suggested courses of action. It was noted that OJAG represented
SECNAV in the litigation that resulted in this decision.

g. In an opinion dated 20 May 2009 (enclosure (4), OJAG
points out that since Petitioner submitted a voluntary request
for retirement prior to the 29 December 2000 NUP and given the
fact that the BOI and his chain of command all concurred that he
should retire in the grade of ltcol, there is a basis for
retirement at that grade. The advisory opinion concludes as
follows:

...Correction of the record by returning [Petitioner]
to active duty will impose significant financial and
administrative costs, and delay resolution of this
nine-year-old administrative proceeding. Upon return
to active duty, [Petitioner] would receive substantial -
back-pay that, in this office's opinion, would be
unjustified and undeserved. Such a resolution is
therefore not a viable option. In light of the Court's
Opinion [sic], [Petitioner's] previous voluntary
application for retirement, and he and his counsel's
acknowledgement that SECNAV retains choice of voluntary
separation, correction of [Petitioner's] record to
reflect a voluntary retirement at the grade of
Lieutenant Colonel [sic] as of 1 September 2000 [sic]

will satisfy all parties and should end this
litigation...

CONCLUSION :

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action. Given the comments in the order of the U. S. District
Court and the advisory opinions from JAM2 and OJAG, the Board now
concludes that his record should be corrected to show that.
Petitioner voluntarily retired on 1 September 2002 in the grade
of ltcol vice the involuntary discharge in the grade of maj now
of record.

The Board further concludes that this Report of Proceedings
should. be filed in Petitioner's naval record so that all future
reviewers will understand the reason's for the corrections to his
record.

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

RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that on 1
September 2002 he voluntarily retired from the Marine Corps in
the grade of ltcol vice the involuntary retirement in the grade
of maj now of record.

b, That this Report of Proceedings be filed in 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 BRIAN J. GEORGE
Recorder Acting Recorder

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

review and action.
\aQeak

W. DEAN PFE

~

Reviewed and approved:

Qa. Ga.

A-VS- 09

ROBERT T. CALI
Assistant General Counsel
(Manpower and Reserve Affairs)