DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 3053-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
‘Te: Secretary of the Navy
Subj}: REVIEW NAVAL RECORD OF 9a
Sees
Ref: (a) 10 U.8.€,. 1552
Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) Petitioner's naval record
(4) HOMC MJB JAD (JAM2) ltr dtd 15AUG13
1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, filed enclosure (1) with
this Board requesting that her naval record be corrected by
removing two page 11 counselling entries dated 8 March and 10 May
2010. Presumably, this request includes, but is not limited to
any and all other references surrounding the circumstances of
this material.
2. The Board, consisting of Messrs. Exnicios, Pfeiffer, and
Whalen, reviewed Petitioner's allegations of error and injustice
on 8 October 2013 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. In addition, the
board considered the advisory opinion furnished by Headquarters
Marine Corps Military Justice Branch, Judge Advocate Division
dated 15 August 2013, a copy of which is provided as enclosure
(4).
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 (1) was filed in a timely manner.
c. Petitioner’s record contains two administrative remarks
(page 11) entries dated 8 March and 10 May 2010 which reflect
that she was restricted from promotion consideration for April
2010 and again for June 2010 due to “pending legal action.”
e. An advisory opinion, enclosure (4), received from the
Marine Corps regarding Petitioner’s request to remove the
inaccurate documentation recommended relief. In this regard, the
advisory opinion states, in part, that promotion restrictions
referenced in regulatory guidelines do not list “pending legal
action” as an authorized reason for a promotion restriction, the
page 11 entries are not in compliance with a strict
interpretation of regulatory guidelines, and as such may be
removed from the record. As a result, all adverse material
referencing the promotion restriction should be removed from the
Official Military Personnel File (OMPF).
CONCLUSION:
Upon review and consideration of all the evidence or record, the
Board concludes-that Petitioner's request warrants favorable
action. In this regard, the Board substantially concurs with the
comments contained in the advisory opinion and concludes that
since the documentation, as it appears in the record, is
inaccurate as written and filed, all references should be removed
from the record.
In view of the foregoing, the Board finds the existence of an
error and injustice warranting the following corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
and/or totally obliterating all references regarding promotion
restrictions for April 2010 and June 2010, to include, but not
limited to the page 11 entries dated 8 March 2010 and 10 May
2010.
b. That any and all materials 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 materials be added to the record in the future.
c. 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. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c), 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 BRIAN J. GEORGE
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulation, Section 723.6 (e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
LoQeen
W. DEAN PFE
Executive Di
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