DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100
JSR
Docket No. 9788-09
“19 November 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: MAT . poem: USM Ce
REVIEW OF NAVAL RECORD >
Ref: (a) 10 U.S.c. 1552°
Enel: (1) DD Form 149 dtd 1 Jul 09 w/attachments
and e-mails dtd 2 and 6 Jul 09
(2) HQMC MMER/PERB memo dtd 21 Aug 09
(3) HQMC MMOA-4 memo dtd 3 Sep 09
(4) HOQMC MMER e-mail dtd 18 Sep 09
(5) HOMC MIO memo dtd 27 Oct 09 wfenclosure
(6) 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 modifying the fitness report for 27 July
2004 to 31 May 2005 (copy at Tab A), by removing section K
(reviewing officer’s marks and comments), and removing
completely the fitness reports for 26 January to 18 April 2008
and 19 April to 14 July 2008 {copies at Tabs B and C). As shown
in enclosure (2), the Headquarters Marine Corps (HOMC)
Performance Evaluation Review Board has ‘directed all the
requested corrections of Petitioner’s fitness report record. He
further requested removing the sérvice record page 11
(“Administrative Remarks (1070)") entry dated 15 April 2008, a
copy of which is in enclosure (1) at Tab A, and the Marine Corps
Total Force System (MCTFS) Body Composition Program (BCP) entry
for 18 April 2008 to 30 March 2009. Finally, he requested
removing his failures of selection by the Fiscal Year (FY) 2008,
2009 and 2010 Lieutenant Colonel Selection Boards, 80 as to be
considered by the selection board that next convenes to consider
officers of his category for promotion to the grade of
lieutenant colonel as an officer who has not failed of selection
to that grade. He was considered by the FY 2011 Lieutenant
Colonel Selection Board, convened on 25 August 2009, but the
results of that promotion board have not been announced.
2. The Board, consisting of Messrs. W. Hicks, Spooner and
Swarens, reviewed Petitioner's allegations of error and
injustice on 19 November 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 all
administrative remedies available under existing law and
regulations within the Department of the Navy..
b. Enclosure (2), the report of the PERB, shows
Petitioner's request to correct his fitness report was granted
in full.
ec. In enclosure (3), MMOA-4, the HOMC Officer Counseling
and Evaluation Section, commented to the effect that
Petitioner's failures of selection to lieutenant colonel should
not be removed, notwithstanding the PERB action, in view of the
noncompetitive cumulative relative values in his fitness reports
as a major, as well as a fitness report date gap.
d. Enclosure (4) provides the basis for the PERB decision.
e. In enclosure (5), MIO, HOMC Manpower Information
Operations, commented to the effect that Petitioner’s request to
remove the page 11 entry and MCTFS BCP entry has merit and
warrants favorable action. A copy of the BCP entry is enclosed
with the MIO advisory opinion.
f. The FY 2008, 2009 and 2010 Lieutenant Colonel Selection
Boards convened on 6 September 2006, 5 September 2007 and 3
‘September 2008, respectively.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board finds the existence of-an injustice warranting full
relief. In light of enclosures (4) and (5), the Board finds
that the contested page 11 and BCP entries should be removed.
Notwithstanding enclosure (3), the Board finds Petitioner’s
failures of selection to lieutenant colonel should be removed as
well. In this regard, the Board recognizes it may well be
correct that Petitioner would have failed of selection in any
event. However, in view of the significant changes made to his
fitness report record, the Board is not prepared to accept the
speculation of MMOA-4 as to whether he might have been selected,
had he enjoyed the benefit of a corrected record. In view of
the above, the Board recommends the following corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
the service record page 11 (“Administrative Remarks (1070)”)
entry dated 15 April 2008. This is to be accomplished by
physically removing the page 11 on which the entry appears, or
completely obliterating the entry so it cannot be read, rather
than merely lining through it.
b, That his MCTFS data be corrected by removing the BCP
entry for 18 April 2008 to 30 March 2009.
c. That his record be corrected further so that he will be
considered by the earliest possible selection board convened to
consider officers of his category for promotion to lieutenant
colonel as an officer who has not failed of selection for
promotion to that grade,
d. 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.
e. 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,
Bere thm fe fee
ROBERT D. ZSALMAN’ JONATHAN S. RUSKIN
Recorder vo Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
\a DEAN PF
Reviewed andfapproved:
(Leth Noob _— PPM
KoBerkt £. Woops °
ASSISTANT Generar Counsel
(mantorien Resets APPAIE)
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