DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JSR
Docket No. 2509-09
26 March 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj:
dee
REVIEW OF NAVAL RECORD ~—~>-
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 4 Mar 09 w/attachment
(2) HOMC MMOA-4 memo dtd 9 Mar 09
(3) 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 removing his failures of selection before
the Fiscal Year (FY) 2009 and 2010 Major Selection Boards, so as
to be considered by the selection board next convened to
consider officers of his category for promotion to major as an
officer who has not failed of selection for promotion to that
grade. Because of the failures of selection for promotion, he
is scheduled to be involuntarily discharged from the Regular
Marine Corps on 1 August 2009.
2. The Board, consisting of Messrs. W. Hicks, Spooner and
Swarens, reviewed Petitioner's allegations of error and
injustice on 26 March 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, 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 ali
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Petitioner's fitness report for 19 May 2006 to 28 May
2007 (copy at Tab A) was missing for both the FY 2009 and 2010
Major Selection Boards, by which he failed of selection.
c. In correspondence attached as enclosure (2), the
Headquarters Marine Corps office with cognizance over the
subject matter of Petitioner’s case has commented to the effect
that his request has merit and warrants favorable action. That
office concluded Petitioner had exercised due diligence to try
to get the fitness report in question entered in his record;
that its absence was a likely contributor to his FY 2009 failure
of selection; and that even though he probably would have failed
before the FY 2010 promotion board in any event, as it is
unlikely his then current photo was available, both failures
should be removed because Petitioner might have been selected by
the first board, had the missing report been in the record.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of enclosure (2), the Board finds the
existence of an injustice warranting the following corrective
action:
RECOMMENDATION:
a. That Petitioner's naval 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
major as an officer who has not failed of selection for
promotion to that grade.
b. That any discharge or other action based in any way on
Petitioner’s failures of selection before the FY 2009 and 2010
Major Selection Boards be cancelled and, if necessary, that
related documentation be removed from his record.
e. 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.
£. 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.
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
5S. 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 723.6(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.
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