a eR

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
70% 5S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

JSR

Docket Noe. NR5679-14
26 June 2014

From: Chairman, Board for Correction of Naval Records
To: secretary cf the Navy

REVIEW OF NAVAL RECORD
Rei: (a) ©£0 U.S... 2552

Enel: (1) DD Form 149 dtd 7 Apr 14 w/attachments
(2} BCNR rept to SECNAV JSR Docket No: 10332-12
atd 23 May 13 less enclosures
(3) HOMC JAR4 memo dtd 12 Jun 14
(4) HQOMC MMPR memo dtd 19 Jun 14
(5) Subject's naval record

1. Pursuant to the provisions of reference {a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected by removing his failure of selection by the
Fiscal Year (FY) 2015 Major Selection Board and granting him
consideration by a special selection board (SSB) for the FY 2014
Major Selection Board. He also requested setting aside action
to effect his discharge from the Regular Marine Corps on 1 July
2014 by reason of his deemed failure of selection by the FY 2011
Major Selection Board and his FY 2015 failure of selection.

2. The Board, consisting of Messrs. Hicks, Spooner and Swarens,
reviewed Petitioner's allegations of error and injustice on 26
June 2014, 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, requlations and policies.

3. The Board, having reviewed ail 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. Petitioner was selected by the FY 2011 Major Selection
Board. He was removed from the promotion list by operation of
law (10 U.S.c. 629 required that his name be removed from the
promotion list effective 1 June 2011 because he had not received
Senate confirmation within the 18-month period following the
date the promotion list was approved, 18 December 2009), and his
removal constituted a failure of selection for promotion. He
was not considered by the FY 2012 or 2013 Major Selection Board.
In his previous case, docket number 10332-12 (copy of Report of
Proceedings at enclosure (2)), this Board directed removing his
failure of selection by the FY 2014 Major Selection Board on the
ground that his record considered by that promotion board
included derogatory information that has since been removed. He
was considered by the FY 2015 Major Selection Board, with a
record that had been corrected to remove the derogatory
information and status as an officer who had previously failed
of selection, and he failed of selection by that promotion
board. His record, as it stood before the FY 2015 Major
Selection Board, did not include any Clarification that he had
not failed of selection by the FY 2012, 2013 or 2014 Major
Selection Board. In his application at enclosure (1), his
counsel contended that his failure of selection by the FY 2015
Major Selection Board should be removed on the basis that he had
not been notified that he would be considered by that promotion
board, and therefore he was denied the opportunity to submit to
that board correspondence that would have explained his
circumstances.

¢. In enclosure (3), the Headquarters Marine Corps (HOMC)
Judge Advocate Division has commented to the effect that
Petitioner's application should be approved in full.
Specifically concerning his request to remove his failure of
selection by the FY 2015 Major Selection Board, that office
concluded that this request should be grante@ because the FY
2015 promotion board “did not have before it any information
explaining the substantial difference between the petitioner's
obvious seniority and the remaining in-zone officer population,”
and. “Consequently, the logical implication was that the

petitioner was passed over for promotion every year since the
FY11 board.”

d. In enclosure (4), the HOMC Promotion Branch concurred
with the recommendation at enclosure (2) to remove Petitioner’s
FY 2015 failure of selection and grant him SSB consideration for
the FY 2014 Major Selection Board.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
especially in light of enclosures (3) and (4), the Board finds
an injustice warranting removal of Petitioner’s failure of
selection by the FY 2015 Major Selection Board, setting aside of
action to effect his discharge on 1 July 2014, ana entry in his
record of a memorandum clarifying that he did not fail of
selection by the Fy 2012, 2013 or 2014 Major Selection Board.

The Board finds that Petitioner has not exhausted his
administrative remedies regarding his request for SSB
consideration for the FY 2014 Major Selection Board, as all the
record corrections on which this request is based have already
been effected. The Board finds that under Secretary of the Navy
instruction 1420.18, he may submit this request to the Secretary
of the Navy, via the HOMC Promotion Branch. Further, in
accordance with the instruction, this request would require
approval by the Secretary of the Navy himself, which might not
be possible to obtain in time to prevent Petitioner's imminent
discharge.

In view of the above, the Board directs the following corrective
action:

RECOMMENDATION:

b. That any discharge or other action based in any way on
Petitioner's failure of selection by the FY 2015 Major Selection
Board be cancelled and, if necessary, that related documentation
be removed from his record.

c. That his record be corrected further by inserting, at an
appropriate location, a memorandum to the effect that he did not
fail of selection by the FY 2012, 2013, 2014 or 2015 Major
Selection Board.

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 or material be added to the record in the future,

€. 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

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,

Dora tihiin LAGI

ROBERT D. ZSALMAN JONATHAN S. RUSKIN
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 Regulations, Section 723.6(e))
and having assured compliance with its provisions, it ig 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.

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ROBERT D. 2 MAN
Acting Executive Director

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