DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BUG
Docket No: 3433-08
2 September 2009

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

 
   

Sub ¥ ess ataaiSS ST lds
REVIEW OF NAVAL RECORD

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

Enel: (1) DD Form 149 dtd 12 Dec 05 w/attachment
(2) HOMC MMER/PERB memo dtd 15 Jul 09
(3) HOMC JAM3 memo dtd 16 May 06
(4) HOMC MMPR-2 memo dtd 31 May 06
(5) HOMC MIO memo dtd 2 Nov 07 w/fenel
(6) Subject’s ltr dtd 29 Jun 06 w/attachment
(7) Counsel’s ltr dtd 30 Jun 06
(8) Memo for record dtd 26 Aug 09
{9} HQMC MMPR-2 e-mail dtd 27 Aug 09
(10) Subject's naval record

4. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that his naval record be
corrected by changing his primary military occupational
specialty (PMOS) to 0351 (infantry assaultman) ; removing the
adverse fitness report for 15 September 2002 to 13 March 2003,
a copy of which is at Tab A (enclosure (2) shows the
Headquarters Marine Corps {(HOMC) Performance Evaluation Review
Board (PERB} has directed removing this report); removing the
service record page il (“Administrative Remarks (1070)") —
entries dated 18 December 2002 (two), 12 January 2003 (two) and
9 March 2003 (four), copies of which are at Tab B; promoting
him to staff sergeant (pay grade E-6) effective 9 February 2003
(and by implication, getting aside his reduction From sergeant
(pay grade E-5) to corporal (pay grade E-4) by action of a
competency review board (CRB)) and setting aside his resulting
removal from the Calendar Year (cy) 2002 Reserve Staff Sergeant
Selection List); removing adverse entries from his medical
record (the Board did not consider this request, as his medical
record reflects no such entries); providing him a copy of his
medical record (the Board did not consider this request, as it
igs not the custodian of his medical record); removing adverse
coding from his DD (Department of Defense} Form 214
(“Certificate of Release or Discharge from Active Duty”) (the
Board did not consider this request, as his DD Form 214
reflects no such coding); and removing documentation of the CRB
(the Board did not consider this request, as his record
reflects no documentation of the CRB).

    

eR ag ee
en reviewed Petitioner’s allegations of error and
injustice on 26 August 2009, and pursuant to its regulations,
determined that relief should be granted. Documentary material
considered by the Board consisted of the enclosures (except
enclosure (9)), naval records, and applicable statutes,
regulations and policies.

The Board, consisting of Age

  
   

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. In December 2002, Petitioner’s Selected Marine Corps
Reserve unit attempted to take nonjudicial punishment (NJP)
action against him for alleged violations of Articles 80
(attempts) and 107 (false official statement) of the Uniform
Code of Military Justice. After he had refused NUP and
demanded trial by court-martial, the unit convened a CRB on
9 February 2003, charging him with unsatisfactory reserve
participation/performance and TNPQ (temporarily not physically
qualified) non-compliance. As a result of the CRB, he was
reduced from sergeant to corporal. Because of this
administrative reduction, he was removed from the CY 2002
Reserve Staff Sergeant Selection List. He was transferred to
the Individual Ready Reserve on 13 March 2003 and discharged
from the Marine Corps Reserve on 3 September 2003.

d. After investigation of Petitioner's unit, both the
inspector-instructor (I-I) and the first sergeant received
adverse fitness reports. The I-I was transferred on 4 January
2004 with an adverse transfer fitness report; and he has since
resigned. The first sergeant, who was relieved of his duties
on 4 June 2004, retired on 31 October 2004. His adverse
fitness report stated “Relieved for failing to take care of
Marines and accomplish duties of a First Sergeant. Most
tangible accomplishment was crushing the morale of all within

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his unit.” These individuals were two of the three members of
Petitioner’s CRB.

e. Petitioner contends that his medical records were
tampered with or destroyed, that the CRB was improperly used as
a substitute for a failed disciplinary action, that two of the
three members of the CRB were biased against him, that he. had
no reserve members on the CRB, that he did not have an adequate
opportunity to prepare his defense, that his attorney was not
permitted to appear, and that the allegations against him were
unfounded. He provides supporting statements testifying that
he was charged for unauthorized absence when he was actually
present.

F. In enclosures (3) and (4), the HQMC Military Law
Branch, Judge Advocate Division and the HQMC Enlisted Promotion
Section commented to the effect that Petitioner’s request to
set aside his administrative reduction to corporal and promote —
him to staff sergeant should be denied.

g. In enclosure (5), the HQMC Manpower Information
Operations, Manpower Management Information Systems Division
(MIO) has commented to the effect that Petitioner’s request to
remove the page 11 entries should be approved. MIO felt that
he should have been assigned PMOS 0351, but that since he is no
longer in the Marine Corps Reserve, action granting him that
PMOS is not required.

h. In enclosures (6) and (7), Petitioner and his counsel
replied to the unfavorable advisory opinions at enclosures (3)
and (4).

i. Enclosure (8) reflects the basis for the HQMC PERE
decision to remove the adverse fitness report for
15 September 2002 to 13 March 2003.

4. The governing CRB directive, Marine Corps Oxder
1400.32C, Volume 2, paragraph 4.a(5) (a), provided that a CRB
for a reserve Marine shall include a majority of reservists, if
reasonably available.

4. Enclosure (9) verifies that 1 February 2003 (not

9 February 2003, the date Petitioner requested) is the date of
rank Petitioner would have received, but for his removal from
the CY 2002 Reserve Staff Sergeant Selection List.
CONCLUSION:

Upon review and consideration of all the evidence of record,
notwithstanding enclosures (3) and (4), and in concurrence with
enclosure (5), the Board finds an injustice warranting full
relief.

The Board agrees with Petitioner that the CRB was an improper
substitute for a failed disciplinary action. Further, the
Board doubts the reliability of the CRB’s findings, since two
of its three members were the I-I and first sergeant whose
credibility has been called into question by subsequent
investigation. The Board also doubts that no reserve Marine
was reasonably available to sit on the CRB. Finally, the Board
is particularly troubled by the evidence that Petitioner was
wrongfully charged with unauthorized absence. For all of these
reasons, the Board finds his reduction by the CRB should be set
aside.

The Board finds that but for Petitioner’s unjust reduction by
the CRB, he would not have been removed from the CY 2002
Reserve Staff Sergeant List, but would have been promoted to
staff sergeant [per enclosure (9), the date of rank and
effective date he would have received is 1 February 2003].

The Board agrees with enclosure (5) in finding Petitioner's
requests regarding the page 11 entries and PMOS should be
approved.

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

RECOMMENDATION :

a. That Petitioner's naval record be corrected to show he
was not reduced from sergeant to corporal on 9 February 2003.

b. That his record be corrected further to show he was not
removed from the CY 2002 Reserve Staff Sergeant Selection List,
but was promoted to staff sergeant with a date of rank and
effective date of 1 February 2003.

c. That his record be corrected further by removing the
service record page 11 (“Administrative Remarks (1070)"}
entries dated 18 December 2002 (two), 12 January 2003 (two) and
9 March 2003 (four). This is to be accomplished by physically
removing the page 11’s on which the entries appear, or

4
completely obliterating the entries so they cannot be read,
rather than merely lining through them.

d. That his record be corrected further to show that when

he was discharged from the Marine Corps Reserve on
3 September 2003, he held PMOS 0351.

e, That any material or entries 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.

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 ina
confidential file maintained for such purpose, with no cross

reference being made a part of Petitioner’s naval record.
5, 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.

DINATPF An) A, [erable

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

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

review and action.
W. DEAN Met F

Reviewed and approved:

Qrrs Te C&L

Q-3-B@

Robert T. Cali 4
Assistant General Counsel
Mannower and Reserve Affalrs)