DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7412-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 (NR20190007412) 1. This letter is in reference to Petitioner’s reconsideration request dated 26 July 2019. Petitioner previously petitioned the Board for Correction of Naval Records (Board) on numerous occasions.1 Petitioner’s most recent case, enclosure (1), was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted is sufficient only to establish an error or injustice with respect to Petitioner’s entitlement to a sixth Sea Service Deployment Ribbon (SSDR). The Board found, however, that Petitioner is not entitled to corrective action with respect to the remainder of his requests for change to his record as detailed in enclosure (1). Consequently, Petitioner’s application has been granted in part to reflect his entitlement to a sixth SSDR, and denied with respect to the remainder of his requests. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 10 February 2020 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 enclosure, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, as well as Petitioner’s previous petitions to the Board for corrective action. 3. The Board, having reviewed all 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 regulation within the Department of the Navy. Petitioner’s requests to this Board date back to 1990 and include multiple allegations of errors and injustices. The Board noted his previous requests and its corresponding actions. The Board carefully reviewed the assertions, allegations and requests within NR20190007412, to include information submitted by Petitioner in support of the application. NR20190007412 incorporates NR20180004691 (previously administratively closed by the Board) by reference, and encompasses issues alleged in NR20160003116, which was submitted in part in response to NR20150003730. In his current application, Petitioner alleges, in part, that NR20160003116 violates Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004), and the Administrative Procedures Act. b. Petitioner was advised by the Board, in its decision letter dated 12 December 2016, that the Board considered its decision relating to NR20160003116 a final action. However, in light of the new and material evidence presented by Petitioner, the Board found it is in the interest of justice to review the current application on its merits. c. Petitioner joined the Marine Corps Reserve in 1975 and entered the active-duty component in 1981. Petitioner was discharged from active duty on 1 November 1993 for failure of selection. Petitioner received separation pay and was transferred to the Marine Corps Reserve. Petitioner continued to serve honorably until he transferred to the Retired Reserve in 1996. Petitioner was retired in the grade of captain. d. In his current application (NR20190007412), Petitioner returns his 2018 application (NR20180004691) for a full and impartial ruling. The 2018 application submitted to the Board was administratively closed on 28 June 2019. Petitioner contends that the administrative closure letter dated 28 June 2019 is “illegal,” and that the Board’s earlier decision of NR20160003116 is both “illegal and prohibited.” Petitioner also states that he returns his amended rebuttal to the Headquarters Marine Corps (HQMC) Awards Branch letter of 18 October 2018 for the Board’s consideration. Petitioner notes that “(o)nce the Board makes its decision . . . (Petitioner) will then approach the Secretary of the Navy of [sic] any relief denied.” e. Petitioner’s 2018 application contains a document dated 4 August 2017 in which he requests the following relief: (1) promotion to the grade of lieutenant colonel, (2) retirement documents corrected to that grade, (3) all missing back pay (to include combat pay, back pay, and combat pay tax), (4) Purple Heart for three murder attempts, (5) two Meritorious Service Medals, (6) Bronze Star for his services as the Officer in Charge (OIC) of the Advance Party in Northern Iraq, (7) the Legion of Merit as an end of service award, (8) NavyCross for surviving “determined criminal actions and multiple murder attempts for the last 15 years,” (9) the Combat Action Ribbon, (10) a parade at 8th and I where the Navy Cross and the Purple Hearts are presented, and (11) an audience with the Secretary of the Navy. Petitioner also asks for consideration of punitive damages/compensation for the adverse impact of the alleged murder attempts and “criminal actions in obstruction of justice over the last 15 years.” Petitioner’s 26 June 2019 communication to the Board asserts that he has vigorously and zealously pursued his claim with the Board regarding his missing combat pay, combat pay tax exclusions, and Purple Hearts, and, in it, he also contends that HQMC had every opportunity to address all of his claims in his 18 May 2018 petition but chose only to address the issue of the Purple Hearts. Petitioner contends that his case is similar to that of the victims of the 5 November 2005 who sustained harm at former hands. Petitioner asserts that, like the victims, he merits the Purple Heart because he survived multiple murder attempts by his “reporting senior and fellow Marine officer(s).” f. As purportedly new and material evidence to support his current request, Petitioner provided a 7 April 2017 letter from the Office of the Judge Advocate General (OJAG) that acknowledged receipt of his 31 March 2017 letter. The OJAG letter noted that, since the correspondence made allegations of criminal conduct, it was forwarded to the Naval Criminal Investigative Service (NCIS) as a matter under its cognizance. Petitioner also provided excerpts from an August 2017 NCIS interview of Petitioner.2 g. Petitioner’s 2016 request, as articulated in part in his 8 May 2016 communication to the Board, alleged that crimes were committed by a former Board examiner against Petitioner and his family over the past 17 years. Petitioner asked for relief with regard to fitness reports for the period of 4 July 1986 to 31 October 1986, 20 August 1991 to 19 May 1992, 1 November 1992 to 11 July 1993, and the added comments after the fact to the fitness report for 12 July 1993 to 27 July 1993. Petitioner also requested relief for all of his failures of selection in 1992, 1993, 1994, and 1995. Petitioner also sought promotion to the grade of lieutenant colonel, with retirement in the same grade, the Purple Heart, a sixth SSDR, the Armed Forces Service Medal for service in Iraq during Operation Provide Comfort, the Combat Action Ribbon, and the Navy Distinguished Service Medal as his end of service award. Furthermore, Petitioner sought all missing back pay as a major, lieutenant colonel, and retroactive retired pay as a retired lieutenant colonel. h. Petitioner states that, on 20 August 1985, he had a fistfight with a fellow Marine, now retired . Petitioner states that, the following day, 21 August 1985, then Lieutenant Colonel (LTCol) poured inorganic arsenic into an open drink on Petitioner's desk in the office that then and Petitioner shared. Petitioner asserts that he became “immediately sick, nearly died, and struggled off to the BAS (Battalion Aid Stations).” Petitioner states that the Navy misdiagnosed him and sent him home sick. Petitioner states he returned to work on 22 August 1985, was again sent to sickbay, and again sent home. Petitioner’s in-service medical record confirms that he was seen by medical personnel on 21 August 1985, and that he presented with a fever of 101.2 degrees. Petitioner’s record reflects that he returned to medical on 22 August 1985 with flu symptoms. Petitioner asserts that, due to the alleged arsenic poisoning in 1985 and the Department of the Navy’s misdiagnosis, he now suffers “with an incurable disease.” i. In support of his contention that poisoned him with arsenic, Petitioner points out that in August 1985, had access to household poisons containing arsenic, that was openly hostile towards Petitioner, that Petitioner developed Mees Lines after 21 August 1985, and that the Department of Veterans (VA) made a determination on 12 January 2010 in which a VA examiner “opined that (Petitioner) at least as likely as not had arsenic poisoning while in service.” The VA formed its opinion in consideration of an evaluation of Petitioner by the Occupational and Environmental Health Center of Eastern New York on 8 February 2005. The VA also noted that Petitioner reported the appearance of Mees Lines on his fingernails, and that he submitted a 5 November 2005 statement from in which noted that he observed white lines on Petitioner’s fingernails in April 1986. j. Petitioner also alleges that former Commandant of the Marine Corps (CMC), wrongfully interfered with Petitioner’s VA medical records and adversely influenced his efforts to pursue an investigation against . 2 Petitioner did not provide the full report of the NCIS interview; instead, only select pages were submitted to the Board. k. The Board considered documents provided by Petitioner, to include portions of the transcript of the 2 August 2017 interview of him by NCIS. Page 44 of the NCIS interview reflects that Petitioner reported that “they say, diabetes from arsenic poisoning. So, at this time, the 2003-2004 time frame.” Petitioner stated that he then started to contact the Secretary of the Navy and . Petitioner told NCIS that interfered with the investigation into the allegations of poisoning, and that Petitioner was disappointed in the interference particularly because of his previous professional relationship with . Page 75 of the NCIS interview reflects Petitioner’s assertion that his VA records contain a falsified medical record from . Petitioner states that he was at work in Pennsylvania when the medical evaluation from was falsified. Petitioner contended to NCIS that “this points to ." l. In his submissions to the Board, Petitioner also makes numerous allegations of wrongful actions by NCIS against him and his family. Petitioner submitted a letter from his former spouse, dated 12 August 2011, which detailed claims of harassment, to include that he and his former wife were harassed while they were dating in the , that they were followed to the post office by agents aboard , that the Navy attempted to interfere with their seating onboard a flight, that agents drilled a hole in the ceiling of their bedroom on 14 July 1990, and that agents were present in the Camp Lejeune Naval Hospital when their son was born. CONCLUSION: The Board took into account the information that Petitioner submitted with his prior applications for correction, and reviewed his current request in consideration of the new information provided. The Board noted that the 2018 application as returned to the Board in 2019 and the subsequent submissions, which were considered before the 10 February 2020 Board, revisit numerous allegations of error and injustice that were already considered and denied by the Board. With the sole exception of the sixth SSDR, the Board concurred with its previous denials. The Board also determined that, apart from the sixth SSDR, Petitioner’s current requests for relief (to include those articulated for the first time and those previously submitted) do not merit corrective action. Therefore, with the exception of the sixth SSDR, the Board concluded that the evidence and information provided is not sufficient to establish error or injustice in Petitioner’s record, and that corrective action is not warranted. The Board noted that much of Petitioner’s claim of error or injustice is predicated upon the allegation that he was the victim of attempted murder through arsenic poisoning by a fellow Marine, and an alleged ongoing obscuration by senior Marines of that criminal act, and the resulting sustained impact to Petitioner both personally and professionally. The Board noted the seriousness of the allegation as well as the severity of the ongoing impact that Petitioner contends resulted from the alleged murder attempt. When assessing Petitioner’s allegation of attempted murder and a following cover-up, the Board took specific consideration of the VA’s decision dated 12 January 2010, in which the VA granted Petitioner the following: a 20% disability rating effective 4 August 2005, for service-connected diabetes mellitus with hypertension and hepatic steatosis residuals arsenic poisoning (claimed as diabetes and circulatory and nervous system disorders); 20% service connection for peripheral neuropathy for right and left upper extremity, respectively; and 10% service connection for peripheral neuropathy right and left lower extremity, respectively. The VAexaminer “opined that (Petitioner) at least as likely as not had arsenic poisoning while in service.” TheBoard, however, found that theVA examiner’s opinion and Petitioner’s subsequent receipt of disability compensation from the VA is not probative of the existence of error or injustice as related to Petitioner’s request for military awards, promotion, advancement, or medical/disability separation or retirement because the VA awarded that compensation without regard to the issue of Petitioner’s performance in the Marine Corps or fitness for military duty at the time of separation. Furthermore, the VA’s decision to award Petitioner a disability rating due to its determination of service-connected arsenic exposure does not establish the commission of a crime as alleged by Petitioner, nor does it establish an error or an injustice that merits corrective action as requested in his petition to the Board. The Board considered Petitioner’s request for a correction to this record as follows: a. Missing Back Pay (to include combat pay, back pay, combat pay tax, and “$800,000 in missing retired/disabilitypay”). Petitioner states that he has not received combat pay for the period of 14 April 1991 to 1 July 1991, while serving as a member of the in support of Operation Provide Comfort in norther Iraq. The Board noted that Petitioner previously indicated that the 24th MEU tried twice to pay combat pay and tax exclusion, and “twice it fell out.” Petitioner indicated that he was aware that the combat pay and tax exclusions were not properly processed in 1991, but that he let the matter drop.3 In his 2016 petition to the Board, Petitioner again raised missing combat pay for service in Iraq, combat tax exclusion, and field rations pay. The Board, in considering his current request, noted that the decision letter pertaining to NR20160003116 commented on his request for combat per diem pay,4 but stated the Board denied it because Petitioner did not provide evidence to establish that he was entitled to such pay. The 12 December 2016 decision letter also advised Petitioner that, with respect to the combat pay tax exclusion, he could submit his request for exclusion to the Internal Revenue Service (IRS), but that the period of limitation on filing a claim as outlined in 26 U.S.C. § 6511 could impact his eligibility. The Board noted that it does not have purview over tax credits or entitlements, which fall under the authority of the IRS. With regard to the combat pay, the Board found that Petitioner did not provide any new evidence or information that would result in a different determination than that of previous panels, and again found that a denial was appropriate. Petitioner has asked the Board for a medical retirement,5 and asserts that he is entitled an to the compensation associated with such a retirement. On 12 January 2010, the VA determined that Petitioner was entitled to (a) service connection for diabetes mellitus with hypertension and hepatic steatosis, residuals arsenic poisoning (claimed as diabetes and circulatory and nervous system disorders) with an evaluation of 20% effective 4 August 2005; (b) service connection for peripheral neuropathy, right upper extremity with an evaluation of 20% effective 4 August 2005, 3 See NR20150003730. 4 The Board, in NR20120012350, likewise considered and denied Petitioner’s request for combat pay. The decision letter contained a note indicating that Petitioner could apply to the Defense Finance and Accounting Service for a pay audit. 5 In NR20150003730, Petitioner contended that he should be moved to the medically retired list effective 1996, and he stated that the Board articulated on 22 April 2013 that he was retired as a result of diabetes. (c) service connection for peripheral neuropathy, left upper extremity with an evaluation of 20% effective 4 August 2005; (d) service connection for peripheral neuropathy right lower extremity with an evaluation of 10% effective 4 August 2005; and (e) service connection for peripheral neuropathy, left lower extremity with an evaluation of 10% effective 4 August 2005. In prior requests to the Board, Petitioner cited a Board decision letter dated 22 April 2013, which was issued in consideration of NR20120012350. The22 April 2013 letter states “diabetes as a result of which you were retired.” Petitioner subsequently asserted that this statement was an admission of his medical retirement on the part of the Navy, and established his entitlement to receive a medical retirement. The Executive Director of the Board responded to Petitioner’s assertion as part of the NR20150003730’s review, and noted that concerning his transfer to the Permanent Disability Retirement List (PDRL), the language contained in the 22 April 2013 letter was an administrative error. In its review of his current request, the Board concurred with the Executive Director’s statement that any indication of a medical retirement in previous written Board communications reflected a clerical or administrative error that did not amount to an error or injustice warranting corrective action. Additionally, the Board found that Petitioner’s successful completion of a career that included active-duty time and Reserve duty that qualified him for a Reserve retirement reflects his fitness for duty throughout his service. The Board also determined that Petitioner’s failures of selection on active duty is an indication of his competitiveness among his peers rather than his unfitness for duty. Accordingly, the Board again concluded that medical retirement (and any associated disability or retirement compensation, to include back pay) is not warranted. With regard to back pay and retired pay associated with a grade higher than captain, the Board found that Petitioner’s record indicates that he was appropriately paid in accordance with the grade he held at the time of his military service. The Board determined that Petitioner failed to provide evidence that he was improperly deprived of pay due to an error or injustice associated with improper rank. The Board also separately considered Petitioner’s request for advancement to the grade of major and to the grade of lieutenant colonel, due to purported error or injustice, and determined that neither advancement to the grade of lieutenant colonel nor retirement in a grade higher than his current grade of captain is appropriate. See infra para. j. b. Request for Purple Heart(s).6 Petitioner contends that, like the victims of former and pursuant to section 571 of the FY 2015 National Defense Authorization Act (NDAA), he is entitled to the Purple Heart (more than one award) based on the alleged murder attempts made against him while he was in the Marine Corps. The Board reviewed Petitioner’s request for the Purple Heart, the information he provided in support of his request, and noted the 16 June 2016 Navy Department Board of Decorations and Medals AO (which was 6 In NR20160003116, the Board previously considered Petitioner’s request for the Purple Heart, Armed Forces Service Medal, Combat Action Ribbon, and Navy Distinguished Service Medal, and, in its decision letter of 12 December 2016, the Board denied the request. In NR20160003116, the Board considered an advisory opinion (AO) from the President, Navy Department Board of Decorations and Medals, dated 16 June 2016, Petitioner’s 1 July 2016 rebuttal to the AO, and a list of awards from Headquarters Marine Corps (MMMA-3) dated 22 October 2013, which provided Petitioner an inventory of awards to which he was entitled. Headquarters United States Marine Corps reviewed Petitioner’s record andprovided a copy ofhis entitlement to awards, dated26February2013. In his current petition, Petitioner provided an amended rebuttal to the Awards Branch AO, and contended that the Awards Branch has admitted they do not have the authority to deny his request for Purple Hearts for both murder attempts. provided to Petitioner, to which Petitioner responded, and which was considered by a previous panel), as well as the 18 October 2018 AO, to which Petitioner submitted an amended rebuttal. In its review of his latest petition, the Board noted Petitioner’s assertions that there is no opposing medical evidence that precludes submitting the Purple Heart requests before the Board. Although the Board carefully reviewed the multiple submissions and the information in Petitioner’s record, the Board concurred with its previous denial of the Purple Heart, concurred with the previous AOs, and concluded that the new evidence, including Petitioner’s amended rebuttal, does not establish that Petitioner was the victim of an attempted murder or other action that resulted in Petitioner being wounded under circumstances that qualify him for a Purple Heart(s). Moreover, he does not qualify under the criteria set forth in section 571 of the FY 2015 NDAA, because his wounding or injury did not occur after September 11, 2001, and was not the result of an attack by a foreign terrorist organization. Accordingly, the Board denied Petitioner’s request for Purple Heart(s). c. Request for SSDR (6th Award).7 The 26 February 2013 Headquarters Marine Corps communication states that Petitioner’s record does not indicate that he was assigned to the Fleet Marine Force for a period of 12 months, and that, during such period, he was deployed for 90 consecutive days or more. On 13 April 2013, Petitioner provided a response to the 26 February 2013 letter, noting that he sailed with the from December 1991 to June 1992, which merited his sixth SSDR. In his latest petition, Petitioner provided the Board with documents detailing his six qualifying deployments, to include duty with on from Nov 79-Feb 81; 3-84 with from July 84­May 85; back to with as part of the UDT Program from July 88 – Jan 89, LF6F 1-90 with BLT from Oct 89 – Apr 90; with the from Dec 90-Jul 91; and with the from Dec 91-Jul 92. Based on the information provided by Petitioner, the Board concurred with his assertion that he is entitled to a sixth SSDR, and, accordingly, the Board determined that his request as it pertains to the sixth SSDR should be granted. 7 The NR20160003116 petition details Petitioner’s request for the sixth SSDR. d. Request for Combat Action Ribbon. Petitioner alleges that he is entitled to the Combat Action Ribbon for his actions in the Subic Bay area against the NPA Communist guerillas and for his actions during his service in Iraq. Headquarters Marine Corps noted in its 26 February 2013 communication that Petitioner’s Certificate of Release or Discharge from Active Duty(DD Form 214) reflects a Combat Action Ribbon. Headquarters Marine Corps stated that the ribbon was authorized for Operation Desert Shield from 17 January to 28 February 1991, but Petitioner did not participate in this operation or any other operation that authorized the Combat Action Ribbon during the period he served in the Marine Corps. On 13 April 2013, Petitioner provided a response to the 26 February 2013 letter, and noted that the Combat Action Ribbon appears in both his DD Form 214 and his OQR. He notes that he rated combat pay, but did not get the Combat Action Ribbon, which he believes he is entitled to. The Board reviewed the new material submitted in Petitioner’s current application as it pertains to his request for a Combat Action Ribbon and found that he did not submit any new evidence that merits a change to its previous denial of his request for the issuance of the Combat Action Ribbon (including the most recent recommendation by the Board on 9 December 2016, NR20160003116. The Board concurred with its previous decision and declined to take corrective action. The Board determined that Petitioner has not provided substantial new evidence of probable material error or injustice warranting a change to his record to reflect that he was awarded the Combat Action Ribbon. e. Request for Armed Forces Service Medal. Petitioner contends that he is entitled to the Armed Forces Service Medal for his service in Iraq during Operation Provide Comfort. The Board determined, however, that Petitioner did not submit any new evidence that merits a change to its 9 December 2016 denial, NR20160003116. The Board concurred with its previous decision and declined to take corrective action. f. Request for Navy Distinguished Service Medal. Petitioner states that, due to the former Board examiner’s “open crimes, and murder attempt,” he is entitled to the medal for so many injustices and open crimes for so long. The Board determined, however, that, even in consideration of the NCIS action, OJAG action, and Petitioner’s statements submitted with his current petition, Petitioner did not submit any new evidence that merits a change to its 9 December 2016 denial, NR20160003116. The Board concurred with its previous decision and declined to take corrective action. The Board also notes that Petitioner provided no new evidence of “exceptionally meritorious service to the United States in a duty of great responsibility,’ as required for the award of the Navy Distinguished Service Medal, which is a discretionary honor. The Board thus concluded that Petitioner is not entitled to the Navy Distinguished Service Medal. g. Request for Two Meritorious Service Medals. Petitioner contends that he is entitled to the Meritorious Service Medal for his 1991 service in Iraq. Headquarters Marine Corps noted in its 26 February 2013 communication that Petitioner was recommended for the Meritorious Service Medal for his service with the , but the award was downgraded to a Navy and Marine Corps Commendation Medal by the awarding authority. TheBoard again denied Petitioner’s request for the Meritorious Service Medal, on the basis that the new information provided to the Board in his current petition does not warrant changing its previous denials. The Board concluded that Petitioner again failed to overcome the awarding authority’s discretionary decision to downgrade the recommendation from the Meritorious Service Medal for his time with in 1991. Petitioner also seeks a second Meritorious Service Medal for service in 2016. Petitioner asserts that he was nominated for the Meritorious Service Medal for service in Iraq but did not receive it. The Board determined that Petitioner did not provide sufficient evidence that he was properly recommended for and approved to receive the Meritorious Service Medal (a discretionary award) for his service in 2016. Accordingly, the Board denied Petitioner’s request for a second Meritorious Service Medal. Petitioner also seeks a Bronze Star for his services as the Officer-in-Charge (OIC) of the Advance Party in Northern Iraq, which landed on 14 April 1991. Petitioner states that all three medals (the two Meritorious Service Medals and the Bronze Star) have been before Headquarters Marine Corps and the Secretary of the Navy since 4 August 2019, and remain unopposed. TheBoard reviewed Petitioner’s request, but determined that Petitioner did not provide sufficient evidence to establish that he was properly recommended for and approved to receive the Bronze Star (a discretionary award) for his service in Iraq in 1991. The Board thus determined that the issuance of the Bronze Star is not warranted. h. Request for Legion of Merit. Petitioner contends that the Legion of Merit is appropriate for having survived over a decade of attempted murders and interference with his VA benefits and treatment. In an earlier communication dated 4 August 2017, Petitioner also asserts that the Legion of Merit is warranted as an end of service award to recognize his contributions to the Marine Corps, to include service in Iraq in which he was repeatedly covered in oil from the Kuwait oil field fires. The Board carefully reviewed Petitioner’s request but found that there is insufficient evidence to establish that he was properly recommended for and authorized to receive the Legion of Merit. Separately, the Board found there is insufficient evidence to establish that Petitioner was the victim of a criminal act against him while he was serving in the Marine Corps, and, in any event, such circumstances do not, by themselves, constitute an act of valor or non-combat heroism, or exceptionally meritorious conduct in performing outstanding services, as required to be eligible for the award of the Legion of Merit. Moreover, award of the Legion of Merit is a discretionary honor. Accordingly, the Board determined that a change to Petitioner’s record to authorize his award of the Legion of Merit is not warranted. i. Request for the Navy Cross. Petitioner claims entitlement to the Navy Cross for surviving “determined criminal actions and multiple murder attempts” and for barely surviving 14 years of ordered murders and interference with his VA benefits and treatment. Petitioner states that he is not asking for precedent with the award of the Navy Cross. Similar to the Board’s rationale for denial of the Legion of Merit, the Board determined that there is insufficient evidence to establish that Petitioner was the victim of a criminal act against his person, to include multiple murder attempts or overt interference with benefits or medical treatment, and that such circumstances do not, by themselves, constitute extraordinary heroism that does not justify award of the Medal of Honor, as required for the Navy Cross, a discretionary honor second only ti the Medal of Honor. Accordingly, the Board determined that a change to Petitioner’s record to authorize his award of the Navy Cross is not warranted. j. Retirement Documents Corrected to Rank of LtCol. Petitioner asserts that he should be retired in the grade of lieutenant colonel to correct the alleged injustice of his attempted murder and to resolve the prior Board examiner’s criminal acts toward him. The Board considered Petitioner’s assertions, his personal statement, the peer statement from regarding Mees Lines , the VA’s decision, the medical information provided, the background information about arsenic poisoning, the OLA’s actions, the OJAG’s action, and the documents relating to the NCIS action into allegations of criminal acts against Petitioner. The Board also reviewed Petitioner’s statements about a former Board examiner, and assessed Petitioner’s claims of interference with his military career by the Board and leaders within the Department of the Navy. The Board found that Petitioner did not provide sufficient credible evidence that the Board, an individual examiner, or the Department of the Navy wrongfully interfered with his career progression or with his attempts to see corrective action before the Board in a manner that deprived him of retirement in the rank of lieutenant colonel. Accordingly the Board concluded that corrective action is not warranted. k. Promotion to the Grade of Lieutenant Colonel, with Prior Advancement to the Grade of Major. Petitioner contends that he is entitled to promotion, with back pay and retroactive retirement pay, to the grade of major and lieutenant colonel in part because of attempted murder of him and the former Board Examiner’s “open crimes” against him. Petitioner asserts that he should be promoted to the grade of major, backdated to 1990, and then promoted to lieutenant colonel, backdated to 1996. In support of his request, Petitioner states that he repeatedly served in major and lieutenant colonel billets, and asserts that his official military personnel file omits many purported “firsts” for which he was responsible. Petitioner cites the promotion of , United States Marine Corps, as legal precedent for his requested promotion to the grade of lieutenant colonel. The Board again reviewed Petitioner’s request for correction to his advancement history,8 and found that the new evidence he provided with his current application does not establish an error or injustice, or warrant a change to any past Board decisions that denied his requests for advancement, promotion, and associated backpay and entitlements, to include retirement in either the grade of major or lieutenant colonel. The Board also noted that selection and recommendation for promotion to a higher grade than major falls under the purview of the promotion selection board process under Title 10, U.S. Code, and requires a nomination to be approved at a level higher than the Secretary of the Navy and confirmation by the U.S. Senate. Promotion to the grade of major or lieutenant colonel, therefore, is beyond the scope of authority of the Board. Applying the presumption of regularity, the Board concluded that Petitioner was properly considered for promotion under the Title 10, U.S. Code, promotion selection board process, and that he failed of selection to a grade higher than captain (O-3). Additionally, the Board found that Petitioner did not establish that his record contains a material error or injustice that merits a special selection board for consideration for promotion to either the grade of major or lieutenant colonel. Petitioner indicates that errors in his performance record impacted his promotion opportunity, and that he requested Board action on his fitness reports for the periods from 4 July 1986 to 31 October 1986, 20 August 1991 to 19 May 1992, and 1 November 1992 to 11 July 1993, and to 8 NR201300005737’s decision letter dated 16January2014, reviewed Petitioner’s request for promotion to lieutenant colonel and backpayfor the promotion. The BoarddeniedPetitioner’s request noting that he had not been considered or selected for that grade. the added comments after the fact to the fitness report for 12 July 1993 to 27 July 1993. In considering his latest request, the Board noted that Petitioner’s request for correction to his record with regard to fitness reports, to include the subject reports, was previously considered by the Board.9 During previous Board consideration, an AO was issued by the Marine Corps Performance Evaluation Review Board (PERB) on 18 May 2011, and, on 20 October 2011, Petitioner provided a rebuttal with enclosures. The Board noted that, in his rebuttal, Petitioner provided the VA’s 12 January 2010 decision and the OEHC report of 8 February 2005, and he stated that he “was a diabetic surviving murder attempt while serving on active duty.” Petitioner’s rebuttal also highlighted allegations of surveillance by the Navy on his career and misconduct by the PERB. The Board concluded that the information submitted by Petitioner in his current request does not introduce any new or relevant information that relates specifically to the fitness reports that was not already considered by the Board. Furthermore, the Board determined that Petitioner does not introduce evidence or information that would merit revisiting the Board’s previous denial of corrective action on his fitness reports. Accordingly, the Board concluded that Petitioner is not entitled to any changes to the fitness reports in his record, and that entitlement to promotion or advancement on the basis of claims of error or injustice in his performance record is not warranted. l. Petitioner requests punitive damages for the purported murder attempts and General Hagee’s alleged criminal actions and obstruction of justice. The Board noted that the evidence provided by Petitioner in his multiple applications and submissions to the Board, and the information in his official military record do not establish that he was the victim of a murder attempt, nor do they establish that a fellow Marine acted in a such a manner that obstructed justice to his detriment. Furthermore, the Board determined that Petitioner’s request for punitive damages falls outside of its authority to correct military records. m. A Parade at 8th and I at which the Navy Cross and the Purple Hearts are To Be Presented. Based in part on the denial of Petitioner’s request for the Navy Cross and Purple Hearts, the Board declined to entertain Petitioner’s request for a parade at 8th and I. The Board also noted that Petitioner’s request for a parade falls outside of the scope of its authority to correct military records. n. An Audience with the Secretary of the Navy. The Board acknowledged Petitioner’s request for an audience with the Secretary of the Navy but denied the request as it falls outside of the scope of theBoard’s authority to correct military records. In view of the above, the Board directs the following corrective action. 9 See NR19910001321, NR19930001339, NR20000004787, NR20110005690, NR20120012350, and NR20150003730. NR20160003116 received Petitioner’s request for consideration of relief/removal with respect to his fitness reports, but declined to consider his contentions because “no new material or evidence” was provided. RECOMMENDATION: That Petitioner be issued a Correction to DD Form 214, Certificate of Release or Discharge from Active Duty (DD Form 215) to reflect that the awards and decorations to which he is entitled include a sixth Sea Service Deployment Ribbon. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 26 July 2019. 4. 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. 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 is hereby announced that the foregoing corrective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy. 12