DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
					 2 NAVY ANNEX
					  WASHINGTON DC 20370-5100

BAN
Doc. No. 06554—07
21 April 2008

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

Subj:	REVIEW OF NAVAL RECORD ICO

Ref:	(a) Title 10 U.S.C. 1552

End:	(1) DD Form 149 dtd 19 Jul 07
(2)	DD 149 w/attachments dtd 20 Oct 06
(3)	HQMC memo 1610 MMER/PERB of 29 Mar 07
(4)	HQMC memo 1400/3 MMPR-2 of 6 Aug 07
(5)	HQMC memo 1400/3 MMPR-2 of 4 Feb 08
(6)	HQMC memo 1400/3 MMPR-2 of 14 Mar 08
(7)	Petitioner’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 to show that he was selected and advanced to the rank of Gunnery Sergeant as a result of the fiscal year 2006 selection board cycle vice the fiscal year 2007 selection board cycle and that his effective date of promotion to the grade of Gunnery Sergeant is September 1, 2006.

2.	The Board, consisting of Messrs. George, Pfeiffer, and Zsalman reviewed Petitioner’s allegations of error and injustice on March 31, 2008 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. The Board also considered two advisory opinions prepared by Headquarters Marine Corps (HQMC). Those advisory opinions, which are attached as enclosures, recommended that no relief be granted.

3.	The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

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a.	Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.

		b.  From May 2002 to March 2003, Petitioner, then a Staff Sergeant (E-6), received two marginal fitness reports. At the time, he was serving as the The first marginal report covered a period from May 28, 2002 to December 31, 2002. On that report, Petitioner received marks primarily in the “B” and “C” range for mission accomplishment, individual character, leadership and intellect/wisdom Comments included “achieves acceptable results in routine & familiar duties ... requires specific guidance & more supervision when attempting endeavors outside of his specialty.” The second report covered the period from January 1, 2003 to March 20, 2003. On that report, Petitioner received marks of “B” in all categories. Comments included “a recent substandard MCATT inspection indicates a requirement for continued MOS and leadership training.” See enclosure (2).

c.	From April-June 2006, the FY 06 Gunnery Sergeant selection board met. That board considered Petitioner for promotion, but did not select him.

d.	In October 2006, Petitioner submitted an application to the Board seeking to remove the marginal fitness reports received for the period from May 2002 to March 2003. That application was forwarded to the Performance Evaluation Review Board (PERB) as a matter under their cognizance. See enclosure
(2)

e.	On March 29, 2007, the PERB directed the removal of the two fitness reports. See enclosure (3).

f.	On May 1, 2007, Petitioner requested that a remedial promotion board be convened to consider him once again for promotion to the rank of Gunnery Sergeant (without the marginal reports) . See enclosure (1).

g.	On June 19, 2007, the results of the fiscal year 2007 Gunnery Sergeant selection board were announced. Petitioner was selected with a seniority number of 274. See enclosure (1).

h.	On July 2, 2007, HQMC denied Petitioner’s request for a remedial promotion board stating, essentially, that a Marine

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cannot receive remedial promotion consideration for a rank currently held or to which selected. See enclosure (1)

i.	Petitioner avers that the PERB initially approved his request for a remedial promotion board and that such board was scheduled to be held on June 28, 2007, but that it was later cancelled because Petitioner had been selected for promotion to Gunnery Sergeant by the fiscal year 2007 selection board. Neither Petitioner nor Headquarters Marine Corps (Code MMPR-2) could provide documents to substantiate or rebut this claim.

j.	On July 19, 2007, Petitioner submitted the instant application seeking to have his record changed to show that he was selected as a result of the fiscal year 2006 Gunnery Sergeant selection board vice the fiscal year 2007 Gunnery Sergeant selection board. Essentially, he asks to have his promotion backdated from August 1, 2007 (when he was promoted as a result of. the fiscal year 2007 Gunnery Sergeant selection board) to September 1, 2006 (when he would have been promoted if he had been selected by the fiscal year 2006 Gunnery Sergeant selection board). His theory, essentially, is that the failure to select earlier in 2006 was a result of the adverse fitness report that was later removed by the PERB on March 29, 2007 as described above.

k.	On August 6, 2007, February 4, 2008 and March 14, 2008, by enclosures (4) (5) and (6), HQMC prepared advisory opinions recommending that neither a backdated advancement nor a remedial promotion board be granted. Their reasoning, set out in the enclosures, essentially is as follows: Marine Corps Regulations governing the selection board process stipulate that Marines are expected to use due diligence to identify errors, discrepancies and injustices in their official records and initiate appropriate corrective action before the convening of selection boards. Under those regulations, there is no basis for granting remedial promotion consideration where a Marine fails to demonstrate due diligence in seeking correction of errors in the record. Here, Petitioner received the marginal reports in 2002 and 2003. The FY 06 Gunnery Sergeant selection board convened in April 2006. He did not take any action to have his fitness reports removed until October 2006, well after the dates of the selection boards for which he is seeking remedial consideration. In HQMC’s view, Petitioner is not entitled to relief because he “did not take the requisite action to review the accuracy of his record until four months after the FY 2006 Gunnery Sergeant Selection Board adjourned” and because “promotion consideration

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is not normally granted for failure to demonstrate due diligence in the correction of errors or injustices in the record.”

1.	On March 31, 2008, the case was considered the Board.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants favorable action for the reasons stated below. The Board finds the rationale offered by HQMC to deny remedial promotion board consideration to be insufficient. The record is clear that when Petitioner was passed over for promotion in 2006, his naval record contained the marginal fitness reports. Those fitness reports were later found to be in error or unjust by the PERB and were removed from his naval record. Based on the findings and action of the PERB, the Board concludes that the marginal fitness reports should not have been part of Petitioner’s naval record when he was considered for promotion in 2006.

Whether Petitioner would have been selected for promotion in 2006 or not (without the marginal fitness reports) cannot be known and is largely a matter of conjecture. A remedial selection board could resolve that issue. However, by their advisory opinions, HQMC has determined that no remedial selection board is warranted because Petitioner did not demonstrate due diligence in seeking removal of the fitness reports before the convening of the 2006 selection board. Moreover, when asked to provide substantive comments on the likelihood of whether (or not) Petitioner would have been selected for promotion in 2006 without the adverse fitness report, HQMC has demurred.

In considering the issue of whether Petitioner would have been selected in 2006 without the marginal reports, the Board notes that the marginal reports were removed by the PERB in March 2007 and that Petitioner was selected for promotion by the very next selection board. The Board views this as strong evidence militating in favor of a finding that Petitioner would have been selected earlier if the marginal fitness reports had not been in his record. HQMC has offered no other compelling substantive or opinion evidence to rebut the claim that, but for the marginal reports, Petitioner would have been selected by the 2006 selection board. Given these circumstances, the Board is not persuaded that lack of due diligence alone, as proffered by HQMC, is a satisfactory basis to deny a substantive consideration of whether Petitioner would have been selected

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without the adverse fitness report in his record. Because HQMC has determined that a remedial promotion board is not warranted, the Board considers it appropriate to resolve the doubt in Petitioner’s favor. Thus, the Board concludes that Petitioner’s promotion should be backdated to September 1, 2006 which is the date when he would have been promoted if selected by the CY 2006 selection board.

RECOMMENDATION:

That Petitioner’s naval record be corrected, where appropriate, to show that:

a.	Petitioner’s effective date of advancement to Gunnery Sergeant is September 1, 2006 vice any other date.

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 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	 WILLIAM J. HESS, III
Recorder						  Acting Recorder

5. The foregoing action of the Board is submitted for your review and action.

					W. DEAN PFEIFFER
					Executive Director

Reviewed and approved:

Robert T. Call
Assistant General Counsel
Manpower and Reserve  Affairs)