DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
	           WASHINGTON DC 2O37O-51OO
		
		TRG
Docket No:10364-05
31 October 2006

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 31 October 2006. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by Headquarters Marine Corps, copies of which are enclosed. There is documentation in your record showing that you were reduced to corporal because of unsatisfactory participation in the Marine Corps Reserve. However, there is no documentation showing any further reductions in grade. Given the passage of time that information is probably no longer available. Therefore, that portion of the advisory opinion which indicated that you had been reduced to private first class was disregarded.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection the Board substantially concurred with the comments contained in the advisory opinion.

Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

DEANPFIEFFER
Executive Director

Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGNIA 22134-5103
IN REPLY REFER TO
1600
CMT
JUL 27 2006 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Sub:	RESERVE AFFAIRS DIVISION ADVISORY OPINION ON BCNR APPLICATION; CASE OF                    FORMER USMCR

Ref:	(a) DD Form 149 dtd 9 Feb 05
(b) BCNR request for advisory opinion of 16 May 06

1.	Per reference (a) and (b), we have reviewed Mr. request for removal of his administrative reductions and reinstatement to his former rank of Sergeant. alleges that he was prevented from transferring to the Individual Ready Reserve (IRR) because e had not turned in his organizational equipment. claims to have eventually turned in all of the military property that had been in his possession and that he should not have been reduced in rank for unsatisfactory participation.

2. Upon review of XXXX . case, we can find no evidence to prove his claim that he had checked out of his unit prior to 14 October 1999. His first administrative reduction was effective 7 March 1999. His records cont in evidence that he was in fact reduced to the rank of Private First Class sometime between 31 May 1999 and his transfer to the IRR on 14 October 1999. Mr. presents no evidence of any alleged error or injustice to support his request for reinstatement; he merely states that he should have his rank reinstated because he worked hard to achieve presents no evidence to mitigate his failure to return military property in timely manner or his failure to continue participation until the property was returned. Based upon the lack of evidence to support his claim we do not concur with his request and regrettably cannot recommend approval of his request.

By direction

				     DEPART NT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
MANPOWER AND SERVE AFFAIRS DEPARTMENT
				HARRY LEE HALL, 17 LEJEUNE ROAD
				       QUANTICO ,VIRGINIA 22134-5104

									IN REPLY REFER TO 
									1400/3
									JUL 07 2006

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL R CORDS

Subj:	ADVISORY OPINION IN T E CASE OF FORMER US CR

Ref:	(a) 	BCNR Docket Number10364-05 dtd 19 Dec 2005
(b)	CO, 4th LAAD EN 1 r 1400 S-I 7 Mar 99
(c)	MCO P1400.32C, EN PROMMAN
(d)	CMC ltr 1070 JAM3 dtd 23 Jun 2006

1. Per reference (a),  XXXX requests that his promotion to sergeant (E-5) be reinstated due to an unjust reduction in grade by a Competency Review Board (CRB).

2. Per reference (b) XXXX  was administratively reduced from sergeant to corporal on 7 March 1999. In accordance with reference (c) , his corporal ate of rank was changed to 2 June 1995 with an effective date f 7 March 1999. Per reference (d), it was the opinion of the Judge Advocate Division that the CRB was properly conducted within military regulations. Additionally, the Board for correction of Naval Records (BCNR) has not removed the 
administrative reduction from XXXX record. Therefore, it was the Judge Advocate Division’s recommendation that Mr. XXXX request be denied. Furthermore, no documentation could be found in Mr. XXXX’ s Official Military Personnel File (OMPF) to show he was ever reduced to private first class. However, if can provide more substantive pro9f of his claim, we will research the matter further.

3.	Based on the foregoing, it is our recommendation that Mr. XXXX rank not be corrected to
sergeant (E-5) and the reduction to corporal (E-4) remain  unchanged

								Major,  U.S. Marine Corps
								 Head, Enlisted Promotion Section

DEPARTMENT OF THE NAVY
HEADQUARTERS NITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
WASHINGTON, DC 20350-3000
IN REPLY REFER TO:

1070
JAM3
JUN 23 2006

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

Subj:	APPLICATION FOR CORRECTION IN THE CASE OF CORPORAL
	USMCR

 
	Ref:	(a) SECNAVINST 5420.193

1.	You requested we provide an advisory opinion on Corporal Ramirez’s (hereinafter “Applicant”) application to reinstate his previous rank of Sergeant (Applicant was administratively reduced to Corporal) -

2.	Opinion. For the reasons noted below, we recommend that the Board deny Applicant’s requested relief.

3.	Background

I.	On 7 March 1999, the Commanding Officer, 4th Low Altitude Air Defense Battalion, Marine Air Combat Group 48, 4th Marine Air Wing, Pasadena, California administratively reduced Applicant on 7 March 1999, for unsatisfactory participation and or performance of reserve training in the Selected Marine Corps Reserve (SMCR) - Applicant failed to attend scheduled drills and/or annual training while a member of the SMCR.

2.	Applicant claims he was reduced to Private First Class (PFC), but there is no documented evidence in Applicant’s record stating this reduction took place.

4.	Analysis

a.	The Board should reject the application because it is untimely. Per the reference, an application for correction of a record must be filed within three years after discovery of the alleged error or injustice, unless the Board excuses the untimely filing in the interest of justice. Applicant filed his application on 19 December 2005, six years after his administrative reduction. Moreover, applicant fails to provide any reason to excuse his untimely application. Timely applications are crucial to a proper determination of an

Subj:	APPLICATION FOR CORRECTION IN THE CASE OF CORPORAL
USMCR

allegation of error where, as here, the ability to confirm the existence of a record is necessary to provide a complete advisory opinion.

b.	Additionally, in order to justify correction of a military or naval record, the Applicant bears the burden to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. Similarly, the lack of documentary evidence in Applicant’s service record book is insufficient proof that his administrative reduction was incorrect.

5.	Conclusion. Accordingly, absent a prior Board of Correction of Naval Records’ decision granting relief, or a lawful act removing Applicant’s administrative reduction, neither of which was presented by Applicant, the requested relief should be denied.

6.	Please contact the Military Law Branch at (703) 614-4250, if you require additional information.

	     Head, Military Law Branch
		Judge Advocate Division

UNITED STATES MARINE CORPS
4TH LOW ALTITUDE AIR DEFENSE BATTAIJON
MACG-48, 4Th MAW
2755 EAST SIERRA MADRE BLVD.
PASADENA, CA 91107-1899

IN REPLY REFER TO:
1400
S-I
07 Mar 99

From:	Commanding Officer, 4th Low Altitude Air Defense Battalion

To:

Subj:	ADMINISTRATIVE REDUCTION ORDER FOR UNSATISFACTORY PARTICIPATION AND OR PERFORMANCE OF RESERVE TRAINING IN THE SELECTED MARINE CORP#S RESERVE

Ref:	(a)	MOO P1001R.1G
	(b)	MOO P1400.328

1. This is to inform you that per references (a), (b) and paragraph 5003 of reference (c), you have been administratively reduced to Corporal due to unsatisfactory participation and or performance of Reserve training, specifically, ‘failure to attend scheduled drills and/or annual training while a member of the Selected Marine Corps Reserve.

2. Your date of rank is 02 Jun 95 with an effective date of 07 Mar 99.

Copy to:
CMC (MMSB)
COMMARFORRES (7AA/SJA)
CG, 4th MAW
Btry lstSgt, GySgt