DEPARTMENT OF THE NAVY :
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100

 

SMS
Docket No: 10145-08
26 May 2009

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

Subj: REVIEW OF NAVAL RECORD OF meuegeeneall

    

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

Encl: (1) Case Summary
(2) Subject's naval record

1. Pursuant to the provisions of reference {a), Petitioner, a
commissioned officer in the Marine Corps Reserve and former enlisted
member of the Marine Corps, applied to this Board requesting to
remove administrative remarks (page 11) service record entries dated
7 October 2002, and promotion to sergeant on 1 November 2002.

2. The Board, consisting of Ms. gar Mr. SP 203

- apiuallaimapamen:oee8 petitioner's allegations of error and
jnjustice on 19 May 2009, 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, advisory
opinions, 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. Petitioner’s application was filed in a timely manner.

c. On 30 November 1998, Petitioner enlisted in the Marine Corps
at age 18, served without incident with a primary military
occupational specialty of machine gunner, and was promoted to
eorporal on 1 January 2001. On 28 August 2002, the Marine Corps
Total Force System generated his cutting score as being 1663. On
J October 2002, he signed an adverse page 11 service record entry
which stated that he was counseled regarding deficiencies in his
performance and conduct and advised that failure to take corrective
action could result in disciplinary action or discharge. In
rebuttal, he submitted a statement and requested that the page 11
service record entry be removed and that he be recommended for
promotion. He also signed another page 11 service record entry dated
7 October 2007, in which he acknowledged being eligible for promotion
to sergeant for the October to December 2002 promotion period, but
was not recommended for promotion because of the previous adverse
page 11 service record entry. The Headquarters Marine Corps
promotion website published the active Marines, machine gunner,
sergeant cutting score as being 1596 for November 2002. On

29 November 2002, he was honorably released from active duty due to
completion of required active service and assigned an RE-1A
reenlistment code. On 19 October .2006, he was honorably discharged
from the Marine Corps Reserve due to expiration of obligated service.

da. Attached to enclosure (1) is an advisory opinion from
Headquarters Marine Corps, Military Law Branch (GAM3), which states,
in part, as follows:

... [Petitioner's] company commander made two
adverse administrative entries (page-11) [sic]
in [Petitioner's] service record book on

7 Oct [ober] 2002. The first entry counseled
[Petitioner] for various deficiencies,
including lack of accountability for armory
issued items. The second entry notified
[Petitioner] that he was not being recommended
for promotion to sergeant...

_., {Petitioner] challenges the factual basis
for the page-11 and provides a letter from
his former commander requesting that [it] be
removed... [Petitioner's] request fails to
provide a compelling factual basis for
finding an error or injustice in the record.
To the contrary,...his former commander,
appears to have merely changed his mind
about the decision he made to counsel
[Petitioner] formally so as not to
negatively affect [Petitioner's] current
pursuit of a Marine Corps commission...

[Petitioner's] request should be denied...

e. Attached to enclosure (1) is an advisory opinion from
Headquarters Marine Corps, Enlisted Promotion Section (MMPR-2), which

states, in part, as follows:

_,,. [Petitioner] requests a correction to
his record to reflect the rank of sergeant
(B-5) vice corporal (E-4)...

... [The page 11 entry dated 7 October 2002]
validates that [Petitioner] was not recommended
for promotion to the rank of sergeant for the

2
@ , @

October 2002 through December 2002 promotion
period. additionally, [Headquarters Marine
Corps JAM3 letter dated 28 January 2009]
indicates [Petitioner's] request

was denied...

_,.it ig recommended [Petitioner's]
record remain unchanged at this time...

£. In his application, Petitioner states in essence that he was
discharged just days after the error and thought all corrective
avenues had been exhausted until his former commander offered to

write a statement.

g. Petitioner's Former: commander, Major B--- submitted an
electronic message to the Board on 18 October 2008, which states, in

part, as follows:

_..With regard to the Page Eleven [sic] entry

I made for [Petitioner] in 2002, I humbly request
that it be removed, and that his promotion
Non-Rec fommendation] [sic] ] be reversed to
"recommended" for promotion to Sergeant [sic]

as of 20021101. The reason 4g that at the time,
I had been Company Commander for a very short
period, and based my decision on too few
individuals to draw such an ominous

conclusion. With hindsight being 20/20, my
recent review of the same facts has made me
regret the decision I made at the time to not
recommend him for promotion. I believe that I
made the wrong decision at the time and wish
for it to be reversed. [Petitioner] is
pursuing a commission in the Marines, and

I feel the Non-Rec [ommendation] [sic] ] I made

in haste at the time will adversely affect his

chances...

h. Regulations authorize commanding officer's to make adverse
page il service record entries on Marines for misconduct, substandard

performance, confirmed incidents of alcohol abuse, or for
administrative measures. Regulations further state that these
entries require authentication by the commanding officer or a by
direction signature of the commanding officer as well as

acknowledgement by the Marine.
CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's requests warrants relief and finds
that the adverse page 11 service record entry dated 7 October 2002,
regarding deficiencies in his performance does not meet requirements
established by regulations. In this regard, his commanding officer
did not authenticate the entry. The Board also considers his
commanding officer's requests to remove the adverse page 1] entry as
well as his non-recommendation for promotion, and to retroactively
promote him to sergeant. The Board further considers his honorable
characterization of service, recommendation for reenlistment, no
disciplinary actions, and notes that his cutting score exceeded the
requirement for promotion to sergeant. Therefore, the Board finds
that both page 11 service record entries dated 7 October 2002 should
be removed and that the record be further corrected to show that he
was promoted to sergeant on 1 November. 2002.

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing both
page 11 service record entries dated 7 October 2002.

b. That Petitioner's naval record be further corrected to show
that he was promoted to sergeant on 1 November 2002.

c. 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.

d. 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 BRIAN J \ GEORGE
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your review and

action.
W. he PFELFRER

Executive Dirdadto
Reviewed and approved:
TT
Qaads SM. Ca:
A= %&- OF
ROBERT T. CALI

Assistant General Counsel
(Manpower and Reserve Affairs)