DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JSR
Docket No: 5418-08
8 January 2009
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the
United States Code, section 1552.
You requested that the date of rank and effective date of your
promotion to chief warrant officer 2 (CWO2) be changed from 29
November 2006 to 1 August 2005, and that all documentation of
the termination of administrative separation proceedings and
delay of your promotion to CWO02 be removed from your naval
record.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 2 October 2008 and concluded deliberations on
8 January 2009. Your allegations of error and injustice were
reviewed in accordance with administrative regulations and
procedures applicable to the proceedings of this Board.
Documentary material considered by the Board consisted of your
application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies. In addition, the Board considered the advisory
opinions from Headquarters Marine Corps (HQMC) dated 30 June, 6
August and 24 October 2008, copies of which are attached, and
your letter dated 22 September 2008.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice. In this connection, the Board substantially
concurred with the comments contained in the advisory opinion
dated 30 June 2008. Concerning your objection that your
promotion was delayed beyond 90 days after final action in your
criminal case, the Board noted that the delay of your promotion
was not based solely on the proceedings in state court, but also
on the disposition of your case by military authorities. The
Board observed that Secretary of the Navy Instruction
(SECNAVINST) 1412.9B of 7 February 2006, enclosure (1),
paragraph 13.f(4) states “A promotion to the grade of CWO2 may
not be delayed more than 6 months after the date the officer
would have otherwise been promoted. CMC [Commandant of the
Marine Corps] may ratify and extend this period of delay for
good cause.” This provision did not appear in the previous.
version of the instruction, SECNAVINST 1412.9A. The Board found
it was 2 February 2006, five days before the issuance of
SECNAVINST 1412.9B, when your promotion, projected for 2 August
2005, had been delayed by six months. Even if the six-month
provision of SECNAVINST 1412.9B is considered applicable to the
delay in your case, the Board noted that on 12 October 2005,
before your promotion had been delayed for six months, HQMC,
acting on behalf of CMC, notified you of further delay of your
promotion. Having found no illegality in the delay of your
promotion, the Board was likewise unable to find the Marine
Corps took an unreasonably long time to determine your fitness
for promotion. Finally, the Board found it unobjectionable that
your CWO2 date of rank/effective date was adjusted to 29
November 2006, the date of termination of administrative
separation proceedings in your case. In view of the above, your
application has been denied. The names and votes of the members
of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered, by
the Board. In this regard, it is important to keep in mind that
a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
Wak ,
W. DEAN PPE
Executive Diirecdo
Enclosure
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