DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 .
JSR
Docket No.. 04984-09
4 June 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 removing the fitness reports for 2 July to 18
October 2005, 19 October to 2 November 2005, 3 November to 1
December 2005 and 2 December 2005 to 21 March 2006. You further
requested setting aside your nonjudicial punishment (NJP) of 21
November 2005 and your relief from Equal Opportunity
Representative (EOR) duties of 5 December 2005. You also
requested that your record be corrected to show you were not
subject to any promotion restriction by reason of NJP, and that
your promotion pursuant to your selection by the FY 2005 Reserve
Staff Sergeant Selection Board was not delayed, nor was your
selection revoked. You impliedly requested removing
documentation of the delay of your premotion and revocation of
your selection by the FY 2005 Reserve Staff Sergeant Selection
‘Board. Finally, you requested adjusting your staff sergeant
date of rank and effective date from 1 April 2009 to reflect
selection by the Fiscal Year (FY) 2005 Reserve Staff Sergeant
Selection Board, vice the FY 2009 Reserve Staff Sergeant
Selection Board. In this regard, you requested adjustment to 1
_January 2006, the date you would have received without any
promotion restriction or delay of promotion; or in the |
cone mn Gt ernatrve;,- i March2006;,-the date you would have received upon
expiration of your three-month promotion restriction by reason
of your contested NJP, had your promotion not been delayed for
four months; or as a third choice, 1 April 2006, the date you
would have received upon expiration of your four-month promotion
delay, had your selection not been revoked.
It is noted that the Commandant of the Marine Corps (CMC) has
directed removing the contested fitness reports for 2 July to 18
October 2005, 19 October to 2 November 2005 and 3 November to 1
December 2005. Your request to remove the report for 2 December
2005 to 21 March 2006 was not considered, as it does not appear
in your Official Military Personnel File.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 4 June 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
report of the Headquarters Marine Corps (HOMC}) Performance
Evaluation Review Board (PERB), dated 9 March 2009, the advisory
opinion furnished by the HOMC Enlisted Promotion Section
(MMPR-2) dated 1 May 2009, the MMPR-2 e-mails dated 21 and 27
May 2009, the memorandum for the record dated 3 June 2009, and
the HOMC Performance Evaluation Review Branch (MMER) e-mail
dated 26 May 2009, copies of which are attached. The Board also
considered your e-mails dated 27 May 2009, 2 June 2009 with
enclosures and attached e-mails, 2 June 2009 (second of the same
date) and 4 June 2009 with attachments.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish probable material error or injustice.
The Board found that the NUP should stand. In this connection,
the Board particularly noted that the regimental commanding
officer (CO)’s letter dated 1 December 2005, denying your appeal
of the NUP, shows the procedural error regarding availability of
witnesses on your behalf was cured. The Board was unable to
find the appeal was not afforded legal review. The Board was
likewise unable to find that Captain R--- attempted to assault
you; that you were forced to sign an entry indicating you did
not desire to submit a statement regarding the NUP; or that your
defense counsel was not as helpful to you as he should have
been, as he was helping both you and the command at the same
time.
The Board found that your relief from EOR duties should stand as
well, While the Board recognized this relief occurred two days
after your having admonished First Lieutenant C--- in your
capacity as the EOR, and the very next day after you had filed a
request mast against him, the Board could not find the relief
was based on your having filed a request mast against him; nor
could it find the relief was based on your having admonished him
for his treatment of a subordinate, as opposed to the manner in
which you admonished him. The Board did not find it
objectionable that the CO considered input from First Lieutenant
C---, who was the adjutant, in deciding to relieve you.
The Board was unable to find that the command's correspondence
with MMPR-2 dated 4 December 2005, recommending a four-month
delay of your promotion, was based on anything other than the
NUP, noting that the appeal of your NUP was not denied until 1
December 2005. The Board also noted that this correspondence
was submitted promptly, less than 30 days after the NUP, and
only three days after the appeal had been denied.
Since the Board found that your relief from EOR duties should
stand, the Board was unable to find the command’s recommendation
for revocation of your selection, which expressly cited that
relief, was unwarranted.
In view of the above, your application for relief beyond that
effected by CMC 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,
lQaod
W. DEAN PFHAF
Executive Diirebtor
Enclosure
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