DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BUG
Docket No: 5385-10
8 June 2011
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. Your most recent previous
case, docket number 2203-10, was denied on 8 April 2010. You
request promotion to pay grade E-8 (master sergeant or first
sergeant), with a date of rank and effective date reflecting
selection by the Calendar Year 1999 promotion board. In
accordance with the United States District Court for the
District of Columbia remand order of 21 April 2010, your case
was reconsidered.
An entirely new three-member panel of the Board for Correction
of Naval Records, consisting of Mses. McCormick and Nappo and
Mr. Boyd (the most recent previous panel consisted of Messrs.
Dunn, Shy and Tew; and the panel for the immediately preceding
case, docket number 10858-08, consisted of Ms. Countryman and
Messrs. Butherus and Swarens), sitting in executive session,
reconsidered your application on 18 May 2010. 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, and the Board’s
files on your prior cases (docket numbers 8653-01, 1685-06,
10858-08 and 2203-10).
By order of 31 March 2011, the United States District Court for
the District of Columbia again remanded your case to this Board
to address expressly three issues your counsel raised: (1) his
allegation that the Enlisted Remedial Selection Board (ERSB)
for the Calendar Year 1999 enlisted promotion board was flawed
because the only tool it used as a basis for comparison with
you was the Performance Index (PI), but your PI was above that
of at least some of those Marines who were selected; (2) his
allegation that the ERSB was further flawed because it had
before it your Official Military Personnel File (OMPF), but not
those of any selected Marines; and (3) his contention that the
derogatory information in your OMPF was too old and stale to
justify your failure of selection for promotion. By order of
27 May 2011, the court yet again remanded your case to this
Board to explain the rationale for its findings concerning
these issues.
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 attached advisory opinion
dated 18 March 2010, which was provided by Headquarters Marine
Corps in your most recent previous case.
Concerning issue (1), the Board found the ERSB could properly
not select you for promotion on the basis of derogatory
information reflected in your OMPF, regardless of how your PI
compared with the PI's of your competitors. As indicated in
paragraph 2 of the advisory opinion and in paragraph 3601 of
Marine Corps Order (MCO) P1400.32D, the applicable directive,
together with MCO 5420.16C, in effect when the ERSB met on 5
May 2008, the criterion to be used by the ERSB was “fully
qualified.” Paragraph 3601 further provided the following:
The ERSB will utilize a sampling of records of
Marines in each competitive category who were
recommended for promotion, and records of Marines
in each competitive category who were not recommended
for promotion. The sampling of records provides a
relative base from which the ERSB can determine which
Marines eligible for remedial consideration are fully
qualified for promotion by comparing their records to
both those selected by the regularly scheduled
selection board and those not selected by the
regularly scheduled selecton [sic] board.
As stated in paragraph 1 of the advisory opinion, since yours
was the only OMPF available to the ERSB, “the focus of effort
by board members to make a decision to promote [i.e., to
determine whether you were “fully qualified” for
promotion] ...would have been based on [your] OMPF and
leadership experience...” While the comparison of your PI with
those of the other Marines whose records were considered would
have been a factor in the ERSB’s deliberations, their “focus”
would have been on the information reflected in your OMPF. The
Board found that the presence in your OMPF of derogatory
information, as detailed in paragraph 1 of the advisory
opinion, supported a determination by the ERSB that you were
not “fully qualified” for promotion, regardless of how your PI
compared with those of the other Marines whose records were
considered.
Regarding issue (2), the Board found it unobjectionable for the
ERSB to consider your OMPF while not considering the OMPF’s of
your competitors. The Board found nothing in either of the
applicable directives, MCO P1400.32D and MCO 5420.16C, that
prohibited this methodology or prescribed a different one.
Neither specified what the “records” of the Marines to be
considered must comprise. The Board did not find the
methodology used for your ERSB to be ideal, but found it was
permissible in accordance with the applicable directives. The
Board did not find it unjust that yours was the only OMPF
available to the ERSB, given that your OMPF did include
derogatory information.
With respect to issue (3), the Board found it likewise
unobjectionable for the ERSB to consider, as a basis for
deciding not to select you for promotion, information reflected
in your OMPF, regardless of its age. In this regard, as stated
in paragraph 1 of the advisory opinion, “All [emphasis added]
adverse material must be briefed to the board.”
In view of the above, the Board again voted to deny relief.
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,
W. DEAN PF
Executive ie or
Enclosure
Co ins
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