DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4818-18 Ref: Signature Date Dear This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. A three-member panel of the Board, sitting in executive session, considered your application on 27 August 2019. The names and votes of the members of the panel will be furnished upon request. 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 applications, together with all material submitted in support thereof, your letters of 29 October 2018 and 14 November 2018, relevant portions of your naval record, and applicable statutes, regulations, and policies, as well as the enclosed 1 August 2016 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you, and your 29 August 2016 rebuttal. The Board carefully considered your request to remove your adverse transfer fitness report (TR FITREP) for the reporting period 1 July 2015 to 21 December 2015. The Board also considered your request to be promoted to gunnery sergeant (GySgt) with the date of rank you would have received had you been selected by the Fiscal Year 2015 (FY15) USMC GySgt Promotion Selection Board, or, in the alternative, that you be granted a FY15 Enlisted Remedial Selection Board (ERSB) and, if granted, direct that you be categorized as eligible from in the promotion zone. Additionally, you requested the Board promote you to master sergeant (MSgt) with the date of rank you would have received had you been selected by the FY19 USMC MSgt Promotion Selection Board. With regard to your claims of misconduct on the part of the Marine Corps Inspector General, the Board notes that it is neither an investigative nor a prosecutorial body. The Board considered your allegations and supporting materials, but found that you provided insufficient evidence to support your claims and their connection to the asserted errors or injustices in your record. The Board also considered your contentions that (1) the promotion zone for the FY15 GySgt Promotion Selection Board was expanded to allow a peer to be moved up into the promotion zone, and, if your records had been correct when the FY15 Board convened—that is, if your grade change (GC) FITREP had been removed from your official military personnel file (OMPF))—the modification to the promotion zone would have included you, and you would have been selected; (2) a previous panel of this Board improperly considered your earlier request for promotion to GySgt ( by improperly considering immaterial evidence—your entire master brief sheet (MBS)—and improperly determining that you bypassed the competitive promotion process; (3) for the FY16 GySgt Promotion Selection Board, you were the senior in-zone member, and, except for your erroneous and unjust adverse TR FITREP, you were highly qualified, competitive, and eligible for promotion, but your TR FITREP contributed to your non-selection; (4) your request for FY16 remedial promotion consideration was improperly denied by Headquarters, Marine Corps due to your lack of due diligence, although a Department of Defense Inspector General (DoDIG) reprisal investigation took precedence and was responsible for the delay in your attempts to correct your record. With regard to your contention that Headquarters, Marine Corps would have modified the promotion zone to include you if not for the GC FITREP in your record, the Board determined that this contention is without merit. The Board noted that the Headquarters, Marine Corps Manpower Plans and Policy Section (MPP-20) establishes the zones and allocations for active-duty enlisted selection boards. The initial zones and allocations are published approximately 60 days prior to the convening date of each selection board. A refined data set of zones and allocations is provided by MPP-20 approximately 30 days prior to the convening date. The Board noted that you mistakenly assert that your performance record was screened to determine competitiveness in order to establish zones. Instead, zones are established based on allocations and a planned selection opportunity—typically 75% of the promotion zone population for promotion to GySgt. The FY15 Promotion Selection Board had an allocation of 10 selects for intended military occupational specialty ). Therefore, the eligible promotion zone population was set to include 13 eligible staff sergeants (SSgts), for a 77% selection opportunity. After the FY15 GySgt Promotion Selection Board convened, but before its members voted for , the eligibly of one SSgt in the promotion zone was removed, resulting in a promotion zone population of 12, which increased the selection opportunity above the desired standard of 75%, to 83%. In order to re-establish the desired standard selection opportunity, MPP-20 moved the most senior SSgt from below the zone to the promotion zone. This is standard practice and is essential for proper manpower management in every MOS. You were not moved into the promotion zone because you were junior to the Marine who was, and once he was moved to the promotion zone, the desired selection opportunity was re-established. The Board determined that your assertion that, more likely than not, you would have been recorded as a below-zone selection to GySgt had your records and fitness reports’ relative values (RVs) been correct is purely speculative and lacks merit. Moreover, the Board noted that, per MCO P1400.32D (Marine Corps Promotion Manual, Volume 2, Enlisted Promotions), “Marines in the below-zone are encouraged to take the same measures as those in the in-zone or above-zone to ensure their records are accurate and up-to-date prior to the convening of the selection board,” and “the Marine must bear the individual responsibility for ensuring the accuracy of his or her OMPF.” MARADMIN 081/15 also provided specific guidance regarding FY15 GySgt Promotion Selection Board preparation, stating “Marines are personally responsible for correcting deficiencies, missing information, or illegible documents present in either the OMPF or MBS with CMC (MMRP-20).” The Board noted that, although your GC FITREP was issued and entered into your OMPF in 2013, you took no action to correct your record until you petitioned the PERB on 27 January 2017, well after the FY15 Board. In addition to the fact that there is no entitlement to remedial consideration for below- zone eligible Marines, your lack of reasonable diligence in correcting your OMPF was the specific reason why your request for remedial promotion was denied by the Commandant of the Marine Corps (MMPR) for the FY15 and FY16 promotion selection boards. The Board concluded that promotion to GySgt is not warranted, and that the convening of an ERSB is also not warranted. The Board also concluded that promotion to MSgt is not warranted, not only because you never served in the grade of GySgt, but also because you were retired early, at your request, in May 2019. With regard to your contention that a previous panel of this Board improperly considered your earlier request for promotion to GySgt ( the Board determined that this contention lacks merit. The Board noted that the Board’s decision letter in that case clearly states that the Board considered “relevant” portions of your naval record. That Board panel, moreover, properly determined, contrary to your assertion, that directing your promotion would have improperly bypassed the competitive promotion process. The decision letter noted that “it would be unjust for you to bypass the competitive selection process, where Marines vie for promotion from among their contemporaries within their military occupational specialty, and a majority vote.” This Board panel concurred that to direct your promotion to GySgt based solely on your claim that you “met the standard as best and most fully qualified for promotion,” would improperly and unfairly bypass the competitive promotion process. MCO P1400.32D provides that “[f]rom a comparative review of the records of all Marines competing for promotion to the next higher grade . . . boards select those ‘best and fully qualified’ for promotion.” Additionally, members of promotion selection boards, consisting of officers and senior staff noncommissioned officers, are directed by precept and bound by oath to evaluate each Marine impartially. There was simply insufficient evidence in your OMPF, and in your application, to establish that you were among the “best and fully qualified” for promotion given the lack of comparative information regarding those Marines with whom you were competing for promotion. Your claim that you “would have” been selected—from below the promotion zone— if not for erroneous data on your GC FITREP does not constitute substantial evidence demonstrating the existence of a probable material error or injustice warranting your non-competitive promotion to GySgt, especially considering that selection determination is based on the “whole Marine” concept. The Board also noted that MMPR denied your request for a FY15 ERSB because you were below the zone that year and did not incur a failure of selection. MMPR also denied a FY16 ERSB consideration due to your lack of reasonable diligence in correcting your record. Finally, the Board noted that you were granted a FY17 ERSB, but failed selection by that board. With regard to your contentions that your TR FITREP should be removed from your record because it was submitted late, it contains unsupported comments than imply adverse deficiencies, it is procedurally erroneous and deficient, and that its third officer sighter (3OS) was not neutral, and sighted your adverse fitness report despite his non-compliance with the Performance Evaluation System (PES) Manual, the Board determined that your contention lacks merit. The Board substantially concurred with the AO and concluded that your report complies with the PES Manual, with the exception of the timeliness of its submission. In that regard, the Board noted that the 3OS expressly explained that the FITREP “exceeded the 60 day period, due in part to the length of the MRO’s [Marine Reported On] rebuttals to the RS’s and RO’s comments, as well as the RS’s and RO’s approval of the MRO’s requests for additional time to provide his responses.” The Board thus concluded that you were partially responsible for the late submission of the report, and that its untimeliness does not invalidate the report. The Board also concurred with the AO that the FITREP was reviewed and adjudicated by the correct 3OS. Moreover, the 3OS specifically addressed your contention that the report implies adverse deficiencies by you as a secure vault point of contact, explaining that,“[a]t best, the MRO’s role was more properly characterized as an Access Manager vice Security Manager” and that “the responsibility [regarding shortfalls in the inventory of classified materials] was outside the scope of MRO’s duties.” Further, the Board found that the record contains no evidence, and you provided none, to support your contention that the 3OS was not neutral, that he improperly conducted the sighting, or that he fulfilled the responsibilities as 3OS in order to conceal his misconduct. Moreover, these same—or similar—allegations were reported by you to the Marine Corps Installations Command, Command Inspector General (MCICOM CIG) and the Department of Defense Inspector General (DoDIG). The Board noted that your allegations were fully investigated and found to be not substantiated. The DoDIG determined that the 3OS, who was the Officer-in-Charge, Legal Service Support Section (OIC, LSSS), Camp Lejeune, did not commit misconduct, concluding that his “releasing the survey information on the LSSS share drive was a decision well within [his] authority.” The Board thus concluded that your TR FITREP does not constitute material error or injustice and shall remain in your OMPF. With regard to your contention that your request for FY16 remedial promotion consideration was improperly denied by Headquarters, Marine Corps due to your lack of due diligence, although a DoDIG reprisal investigation took precedence and was responsible for the delay in your attempts to correct your record, the Board determined that this contention is without merit. With the Board’s decision that your TR FITREP is not in error or unjust, and that it shall remain in your OMPF, the Board noted that the only error in your record when the FY16 Promotion Selection Board convened was your GC FITREP. As noted above, although that report was issued in 2013, you took no action to correct your record until you petitioned the PERB in January 2017, after the FY16 Board, to have the GC FITREP removed, after you failed selection for promotion. The Board concurred with MMPR-2 in concluding that you did not exercise reasonable diligence in correcting your record before the convening of the FY16 Promotion Selection Board. 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 matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or 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.