DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JSR
Docket No: 1582-11
10 March 2011
From: Chairman, Board for Correction of Naval Records
Tes Secretary of the Navy
ij
REVIEW OF NAVAL RECORD
Ref: fa) Title 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 12 Jul 10 w/attachments
(2) HOMC MMER/PERB memo dtd 31 Jan 11
(3) HOMC MIO memo dtd 10 Feb il
(4) HOMC MMOA-4 memo dtd 16 Feb 11
(5) Subject’s ltr dtd 4 Mar 11
(6) Subject’s naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by removing the
fitness reports for 18 June 2007 to 31 May 2008 and 1 June 2008
to 4 June 2009, copies of which are at Tabs A and B,
respectively. As indicated in enclosure (2), the Headquarters
Marine Corps (HQMC) Performance Evaluation Review Board (PERB)
has directed modifying the report for 18 June 2007 to 31 May
2008, by removing the entire section K (reviewing officer’s
marks and comments), and completely removing the adverse report
for 1 June 2008 to 4 June 2009. Petitioner further requested
removing the service record page lle (“Administrative Remarks
(1070)") entry dated 7 May 2009, counseling him for substandard
performance, and his rebuttal dated 14 May 2009, copies of which
are at Tab C. Finally, he requested removing his failures of
selection for promotion before the Fiscal Year (FY) 2011 and
2012 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. By reason of the
failures of selection for promotion, he is scheduled to be
involuntarily retired on 1 July 2011.
2. The Board, consisting of Messrs QQ
reviewed Petitioner’s allegations of error and injustice on 10
March 2011, 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 which were available under existing law
and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
c. In enclosure (2), the HQMC PERB has commented to the
effect that the remaining contested fitness report for 18 June
2007 to 31 May 2008, as modified by removal of section K, should
stand.
d. In enclosure (3), MIO, the HQMC office with cognizance
over the subject matter of Petitioner’s request to remove the
page lle entry, has commented to the effect this request has
merit and warrants favorable action.
e. In enclosure (4), MMOA-4, the HQMC office with
cognizance over the subject matter of Petitioner's request to
remove his failures of selection to major, has commented to the
effect this request should be denied, concluding that without
his having completed the professional military education
required for his grade, it is definitely unlikely he would have
been promoted in any event.
f. Enclosure (5) is Petitioner’s letter contending that all
the relief he has requested that has not been effected already
should be granted.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board finds an injustice warranting partial relief,
specifically, removal of the page lle entry and the failures of
selection for promotion. The Board agrees with enclosure (3)
in finding that the page lle entry should be removed.
Notwithstanding enclosure (4), the Board finds that Petitioner’s
failures of selection to major should be removed as well. In
this regard, the Board particularly notes that his record has
been significantly changed by the PERB action, to include
removal of an adverse fitness report, and that it is the Board’s
recommendation to change it further by removing a derogatory
counseling entry. The Board is unwilling to accept the MMOA-4
speculation that Petitioner's selection would have been unlikely
in any case. Finally, the Board agrees with enclosure (2) in
concluding that no further correction of Petitioner’s fitness
report record is warranted. In view of the above, the Board
recommends the following limited corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
the service record page lle (“Administrative Remarks (1070) ")
entry dated 7 May 2009 and his rebuttal dated 14 May 2009. This
is to be accomplished by physically removing the page 11 on
which the entry appears and the rebuttal, or completely
obliterating the entry and rebuttal so they cannot be read,
rather than merely lining through them.
b. 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 major as an
officer who has not failed of selection for promotion to that
grade.
c. That any retirement or other action based in any way on
Petitioner's failures of selection by the FY 2011 and 2012 Major
Selection Boards be cancelled and, if necessary, that related
documentation be removed from his record.
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 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 ina
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner’s naval record.
f. That the remainder of Petitioner’s request be denied.
4. Tt 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.
Porth fades,
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
LS Wow
DEAN PFEI
Review. and ‘ae
[Mera |
ROBERT L. WOODS
Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000
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