DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DOC 20370-5100
: JGR
Docket No. 06189-1121
22 September 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Ref: (a) 10 U.S.C. 1552
subj; IPP
REVIEW OF NAVAL RECORD
DD Form 149 dtd 20 May 11 w/attachments
HOMC JAR4 memo dtd 16 Aug il
Counsel’s ltr dtd 8 Sep 11
Subject's naval record
Encl:
mw:
es
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 the applicable naval record be corrected to show he
was retired in the grade of major (pay grade 0-4), rather than
captain (pay grade 0-3). A copy of documentation on file in
Petitioner’s record about his request for voluntary retirement
in lieu of processing for administrative show cause proceedings,
which includes correspondence concerning the Secretary of the
Navy (SECNAV) decision of 12 March 2009 to retire him as a
captain, is at Tab A. Petitioner further requested that the
separation code of RNC1 (“acts of unacceptable conduct (i.e.,
moral and/or professional dereliction not otherwise listed
herein”) shown in block 26 of his DD Form 214 (*Certificate of
Release or Discharge from Active Duty”) (copy at Tab B) be
changed so as not to reflect “professional/moral dereliction.”
2. The Board, consisting of Messrs. Chapman, W. Hicks and
Swarens, reviewed Petitioner's allegations of error and
injustice on 22 September 2011. Pursuant to the Board’s
regulations, the majority of the Board, Messrs. Chapman and W.
Hicks, determined that the corrective action indicated below
should be taken on the available evidence of record. The
minority of the Board, Mr. Swarens, voted to deny relief.
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.
ce. On 28 July 2008, Petitioner received nonjudicial
punishment for violations of the Uniform Code of Military
Justice, Articles 134 (adultery) and 92 (use of a Government
computer to communicate with the person with whom he allegedly
committed adultery) .
d. In enclosure (2), the Headquarters Marine Corps Judge -
Advocate Division commented to the effect that the separation
code should stand, as it was correctly assigned, but that there
is sufficient evidence to find the reduction of Petitioner’s _
retired grade from major to captain was unjust. That office
concluded that the reduction effected by SECNAV in this case was
inconsistent with the SECNAV action in other similar cases,
noting that neither the Deputy Commandant of the Marine Corps
for Manpower and Reserve Affairs (DC M&RA) nor SECNAV indicated
what factors caused them not to concur with the recommendation
of Petitioner’s chain of command that he be retired as a major,
or what caused them to distinguish his case from those in which
SECNAV had not retired the officers in a grade below that held
on active duty [the DC M&RA stated Petitioner’s “conduct and
judgment fell far below that expected of a Marine officer of his
grade and experience”]. That office acknowledged “There is no
‘bright line’ rule for when an officer should be allowed:to
retire at his current rank vice a lower grade” and that SECNAV
“makes a discretionary determination based on the particular
facts and circumstances of each case.”
e. In enclosure (3), Petitioner’s counsel concurred with
the advisory opinion as it related to Petitioner’s retired
grade, but did not address the separation code.
MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosure (2), the
majority of the Board finds the existence of an injustice
warranting the following limited corrective action:
MAJORITY RECOMMENDATION:
a. That Petitioner’s naval record be corrected to show that
SECNAV did not approve the recommendation of the DC M&RA that
Petitioner be retired in the grade of captain, but rather
directed his retirement in the grade of major.
b. That any material or entries inconsistent with or
relating to the recommendation of the majority of the Board 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.
c.' That any material directed.to be removed from
Petitioner's naval record be returned to this 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.
d. That the remainder of Petitioner's request be denied.
MINORITY CONCLUSION:
The minority of the Board finds that Petitioner’s request should
be denied in its entirety. Notwithstanding enclosure (2), the
minority finds Petitioner"s retired grade should not be changed.
Regarding inconsistency with other cases, the minority notes the
acknowledgment, in enclosure (2), that each case is unique and
must be decided on its own facts and circumstances. Further,
the minority finds the basis for the retired grade decision in
Petitioner’s case was adequately articulated. The minority
agrees with the majority in concluding that the separation code
should not be changed. In view of the above, the recommendation
of the minority is as. follows:
MINORITY RECOMMENDATION :
"a. That Petitioner’s request be denied.
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,
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder . Acting Recorder
5. ‘The foregoing report of the Board is submitted for your
LV
W. DEAN PFE
review and action.
MAJORITY REPORT
Reviewed and approved:
MINORITY REPORT
Reviewed and approved:
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