DEPARTMENT OF THE NAVY
BOARD WASHINGTON DC 2O37O-51OO

BJG
Docket No:1685-06
16 July 2007

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.

Your previous case, docket number 8653-01, was denied on 6 May 2004. At the request of the Office of the Judge Advocate General of the Navy (General Litigation), your case was reopened on the basis of an error in the information that had been provided by the Headquarters Marine Corps (HQMC) Enlisted Promotion Section (NMPR-2) . You have renewed your request for promotion to pay grade E-8 (master sergeant or first sergeant) effective 1 November 1998. In the alternative, you now request new enlisted remedial selection boards (ERSB’s) for the Calendar Year (CY) 1999, 2000 and 2001 master sergeant and first sergeant selection boards.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 12 July 2007. 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 current application, together with all material submitted in support thereof, the Board’s file on your prior case (docket number 8653-01), your naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinions furnished by the HQMC Enlisted Promotion Section (MMPR-2), dated 11 April and 2 August 2006, and the MMPR-2 electronic mail (e-mail) dated 21 April 2006, copies of which are attached. The Board also considered your counsel’s rebuttal letter dated 17 August 2006 with enclosure and his e-mail submissions, including statements in support of your request.

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 input provided by MMPR-2.

The Board determined that your case could be denied properly without an evidentiary hearing; and without obtaining sanitized copies of records of Marines against whom you competed, or a copy of your record as it appeared for the CY 1999, 2000 and 2001 ERSB’s.

The Board found it unobjectionable that a performance index (P1) was used for the CY 1999 ERSB, noting the P1 was not used alone, but in conjunction with your Official Military Personnel File. The Board found the information MMPR-2 provided about the use of the P1 was sufficient. The Board found the ~Th’IPR-2 advisory opinion dated 2 August 2006 was correct as to the number of Marines with whom you were compared, despite the indications, in the enclosure to your counsel’s letter of 17 August 2006, that the CY 2001 ERSB rated you against 10 other Marines. In this regard, the Board considered Mt4PR-2 a more reliable source within HQMC, for this purpose, than the Head, Freedom of Information/Privacy Act Sections, who provided the enclosure to counsel’s letter. Further, the Board considered it unlikely that MMPR-2 would have understated the number of records with whom yours was compared, when asserting a larger number could have bolstered the validity of the proceedings in question. The Board found that every Marine considered by the regular CY 2000 and 2001 First Sergeant and Master Sergeant Selection Boards who was in your military occupational specialty was selected for promotion, whereas the overall selection rate was much lower. The Board did not agree with your argument that your not having been selected by the ERSB’s was inconsistent with the principle that ERSB’s are not limited to a particular number of allocations.

Finally, the Board found your record for all three ERSB’s in question included the following substantial information  supporting their determination not to select you for promotion:  service record page 11 (“Administrative Remarks (1070)”) counseling entries dated 12 October 1984 and 9 December 1985; derogatory fitness reports for 19 October to 20 December 1982 and 1 April to 29 October 1983; and nine fitness reports showing peers ranked above you (20 January to 31 March 1983,
16 December 1983 to 13 April 1984, 14 April to 28 August 1984,
1 April to 7 August 1985, 31 July to 31 October 1987, 17 June to
31 December 1989, 1 January to 31 December 1990, 1 January to
3 August 1993 and 1 November 1997 to 30 September 1998)

In view of the above, 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,

	W.DEAN PFEIFFER
	Executive Director

Enclosures

Copy to:
 Esq

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

										IN REPLY REFER TO
				1400/3
											MMPR-2
											April 11 2006

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

Subj:	ADVISORY OPINION IN THE CASE OF GUNNERY SERGEANT
	Ref:	(a)	CMC MMPR-2 BCNR Memo 1400/1 MMPR-2 of 16 Jan 02
		(b)	CMC MMPR-2 1420/2 MMPR-2 of 26 Sep 02
		(c)	CMC MMPR-2 BCNR Memo 1400/1 MMPR-2 of 16 Oct 02
		(d)	MCO P1400.32C (ENLPROMAN)

1. Per references (a) through (c), the following clarification is provided to address the Enlisted Remedial Selection Board (ERSB) process. Gunnery ~ remedial consideration to the rank of first sergeant and master sergeant for the CY 1999, 2000, and 2001 Sergeant Major through Master Sergeant Selection Boards on 16 November 2001 and was not approved for promotion selection.

2. When Gunnery ~ remedial consideration for the CY 1999 SgtMaj through Master Sergeant Selection Board, his Official Military Personnel File (OMPF) was the official record used by the board members to determine promotion selection. However, since the Performance Index (P1) rating system was the performance evaluation system in use during 1999, Gunnery Sergeant 1 was also used to compare his performance against t at of his peers. P1 calculates the value of fitness report marks in a Marine’s current grade not to exceed five years. P1 ratings can fall anywhere between 9.00, being the highest, to 6.50, being the lowest. When Gunnery Sergeant received remedial consideration for the CY 1999 Sergeant Major through Master Sergeant Selection Board, his P1 value was 8.95. There were 179 Marines selected to first sergeant in the Intended Military Occupational Specialty (IMOS) 9999 with a P1 value of 9.00-8.80 and 20 Marines selected to master sergeant in IMOS 1169 with a P1 value of 9.00-8.80. Between the two IMOS’s, only one Marine was selected to first sergeant IMOS 9999, with a P1 value of less than (9.00-8.80) . His P1 value fell in the 8.59-8.40 range.

Subj:	ADVISORY OPINION IN THE CASE OF GUNNERY SERGEANT

3. On 1 January 1999, the Marine Corps’ performance evaluation system underwent major modifications, causing the statistical value of fitness reports to change. The P1 rating system was replaced with the current fitness report evaluation system we have today. Due to the change in the performance evaluation system, the Enlisted Promotion Section (MMPR-2) changed the ERSB comparison process for all boards after CY 1999. The current ERSB process requires board members to compare the OMPF of the Marine being considered for remedial promotion against those Marines who had competed for promotion within his or her respective IMOS. This was the process used when Gunnery ~ remedial consideration for the CY 2000 and 2001 Sergeant Major through Master Sergeant Selection Boards.

4. The circumstances surrounding each Marine’s request for remedial consideration are evaluated individually, with consistency and fairness in mind. However, the confidentiality of the selection board process precludes knowing the exact reasons why Gunnery ~ not selected The Board members are administered an oath of nondisclosure of proceedings or recommendations pertaining to the selection or non-selection of individual staff noncommissioned officers in accordance with reference (d) . It can only be inferred that based upon a majority vote of the board members, his record was not competitive with the records of the Marines selected for promotion.

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