DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TSR

 

Docket No: 3147-11
14 April 2011

From: Chairman, Board for Correction of Naval Records
Toe: Secretary of the Navy

    

sub; ¥

Ref: (a) Title 10 U.S.C. 1552

Enel: bments

  
 

pr 11 w/enclosures

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 1 to 24 September 2007, 4 October 2007 to 19
March 2008 and 20 March to 3 June 2008, copies of which are at
Tabs A, B and C, respectively. As indicated in enclosure (2),
the Headquarters Marine Corps (HOMC) Performance Evaluation
Review Board (PERB) has directed completely removing the
contested reports for 1 to 24 September 2007 and 4 October 2007
to 19 March 2008, and modifying the report for 20 March to 3
June 2008 by removing the entire section K (reviewing officer’s
marks and comments). The PERB further directed completely
removing the uncontested report for 25 September to 3 October
2007 (copy at Tab D) and modifying the uncontested report feu 1
October to 31 August 2007 (copy at Tab E) by removing the entire
section K. In enclosure (3), Petitioner's counsel indicated
that Petitioner was fully satisfied with the corrections PERB
had directed to his fitness report record. Petitioner further
requested removing the service record page 11 (“Administrative
Remarks (1070)”) entry dated 19 March 2008, a copy of which is
at Tab F. Finally, he requested setting aside the Commandant Of
the Marine Corps (CMC)'s revocation dated 8 July 2008 of his
selection by the Fiscal Year (FY) 2007 First Sergeant Selection
Board and promoting him to first sergeant with the lineal
precedence he would have had, but for the revocation. Copies of
the CMC letter dated 19 November 2007, delaying Petitioner's
promotion, and the revocation letter are at Tab G. By
implication, Petitioner also requested removing his failures of
selection by the FY 2009 and 2010 Master Sergeant Selection
Boards and correcting his record to show he was not defrocked.
Enclosure (3) shows that by reason of service limitations
applicable to gunnery sergeants, Petitioner, who is scheduled to
transfer to the Fleet Reserve effective 1 October 2011, will not
be permitted to reenlist absent favorable action on his request
to set aside the revocation of his selection*far promotion.

This ‘xmpliedly requests that action to effect hie transfer to
the Fleet Reserve be cancelled.

2. The Board, consisting of Dr. Garst and Messrs. Gorenflo and
McBride, reviewed Petitioner“s allegations of error and
injustice; on-14 April 2011; and pursuant:to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of wecord. 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. The contested page 11 entry counseled Petitioner for the
following:

Demonstrating poor judgment by operating a motorcycle
at a high rate of speed after having consumed multiple
alcoholic beverages in public establishments with
other Marines, after which, at 0151 on 22 July 2007
you were involved in a collision with a civilian
vehicle resulting in serious injuries to yourself
including: extensive fractures of the mid-face,
fracture dislocation through the radio carpal joint of
the right wrist and general abrasions. While in the
hospital for treatment of these injuries, your blood
alcohol level was determined to be approximately 165
mg/dL, or equivalent to a blood alcohol concentration
(pac) of 0.165%; 26 ae unlawful in the state of South
Carolina for a person to drive a motor [eic] ovyele
with a BAC of 0.08% or greater. A police officer who
observed the accident estimated your speed at impact
to be 65 miles per hour in a 40 mile per hour speed
limit zone. You are also counseled for disobeying
MCO [Marine Corps Order] 5110.1D by operating a motor
[sic] cycle without insurance. As a senior SNCO
[staff noncommissioned officer] you are expected to
be an example for other Marines to emulate.

d. Petitioner was selected by the FY 2007 First Sergeant
Selection Board, which convened on 17 October 2006. By virtue
of his selection, he was frocked as a first sergeant. Asa
result of his subsequent accident, his promotion was delayed
until completion of legal proceedings, he was defrocked, and the
contested page 11 entry was issued. The page 11 entry was the
stated basis for the CMC revocation of his selection for
promotion.

e. In enclosure (4), the HQMC Judge Advocate Division
commented to the effect that the page 11 entry and revocation of
selection for promotion were legally proper and that
Petitioner's request regarding these matters should be denied.

£. The PERB report at enclosure (2) stated that the
decision to correct Petitioner’s fitness report record was
influenced by the following:

no charges were brought to court-martial, no charges
were made by the local or state police, the petitioner
was found not to be at fault for the accident,
multiple statements from officers and senior [SNCO's]
who were with the petitioner the evening of the
accident attesting to the fact that he was not
intoxicated and did not drink to excess, the command
investigation did not find misconduct by the
petitioner...[the PERB] did find the Commanding
General’s admission [in paragraph 2 of his third
endorsement of 6 November 2007 on the report of
investigation of the accident, at enclosure (1)]

that ‘the toxicology screening may have been
contaminated...'. to be most compelling. The [PERB]
also found that the petitioner’s lack of insurance

was proven to be an administrative error on the part
of the insurance company and did not represent adverse
behavior by the petitioner.
g. Enclosure (3) is Petitioner's counsel's rebuttal to the
advisory opinion at enclosure (4), maintaining that the
requested relief is warranted. Specifically concerning the
revocation of selection for promotion, he asserts that
Petitioner was not afforded an opportunity to make a statement.

h. Enclosure (5) shows that 1 November 2007 is the date ef
rank and effective date Petitioner would have received, had he
been promoted pursuant to his selection by the FY 2007 First
Sergeant Selection Board.

CONCLUSION:

Upon review and consideration of all the evidence of record,
notwithstanding enclosure (4), and especially in light of the
PERB’s basis for correcting Petitioner's fitness report record,
the Board finds an injustice warranting the full relief
requested. In this connection, the Board finds that the matters
the PERB cited effectively invalidate the page 11 entry, on
which the revocation of Petitioner's selection for promotion was
based, as well as his defrocking. The Board further finds that
but for the revocation of his selection for promotion, he would
have been promoted to first sergeant with the date of rank and
effective date shown in enclosure (5). Finally, the Board finds
that if his record is corrected, as it proposes, to show his
selection for promotion was not revoked and he was promoted, it
would serve no purpose for his record to continue to show that
his promotion was delayed. 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 CLOTE)* }
entry dated 19 March 2008 (Official Military Personnel File
(OMPF), Service - Contract, image 54). 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 ie.

b. That his record be corrected further to show that his
promotion to first sergeant was not delayed, to include removing
the CMC letter 1450/2 MMPR-2 dated 19 November 2007, Subject:
Delay of Promotion ICO [in case of] Petitioner (OMPF,
Commendatory Derogatory - Other, image 29); that he was not
defrocked; and that his selection by the FY 2007 First Sergeant
Selection Board was not revoked, to include removing the CMC
letter 1450/5 dated 8 July 2008, Subject: Revocation of
Selection from the FY 2007 First Sergeant Selection Board (OMPF,
Commendatory Derogatory - Other, image 30).

c. That his record be corrected further to show he was
promoted to first sergeant with a date of rank and effective
date of 1 November 2007; and that his lineal precedence be
adjusted accordingly.

d. That his record be corrected accordingly by removing his
Failures of selection by the FY 2009 and 2010 Master Sergeant
Selection Boards.

e. That the Marine Corps Total Force System data be
corrected accordingly.

f. That any action to transfer Petitioner to the Fleet
Reserve be cancelled and, if necessary, that related
documentation be removed from his record.

g. That any material or entries 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.

h. 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.

PoneTKal f, lacobs

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.

 

 

Reviewed and approved:

Lot Mlnb— sfio|

ROBERT L. WOODS

Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Am 4D548
Washington, DC 20350-1000