DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2750-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF CAPTAIN , USMC,XX X-XX - Ref: (a) 10 U.S.C. § 1552 (b) USO Memo, subj: Officer Appointments-Exemplary Conduct, 12 February 2007 Encl: (1) DD Form 149 w/attachments (2) United States v. [Petitioner], No. 11-0440, CAAF (6 March 2012) (3) CMC Memo, subj: Removal by Operation of Law from the FYl 1 Major Promotion List, 1420 MMPR-1 of 14 Aug 12 (4) HQMC JAD Ltr, 5800 JAM of21 Dec 12 (5) CMC Memo, subj: Special Selection Board Request in the case of [Petitioner], 1401/2 MMPR of 15 May 14 (6) HQMC Memorandum for the Record, subj: [Petitioner], 1400 MMRP of 2 Jul 14 (7) ASN (M&RA) Memo, subj: BCNR Petitioner of [Petitioner], Docket# 10332-12, of 4 Sep 14 (8) OJAG (Code 13) Memo, subj: Advisory Opinion ICO [Petitioner], 5420 Ser 13/1BC0417.15 of 18 May 15 (9) ASN (M&RA) Memo, subj: Review of Naval Record of [Petitioner], of 17 Dec 15 (10) [Petitioner] v. , Acting SECNAV, Case 1:14-cv-00479, U.S. District Court for the District of Columbia, 1 May 2017 (11) CMC Memo, subj: Notification of Promotion Withhold and Possible Removal from the Fiscal Year 2011 USMC Major Promotion List, 1420 JPLP of 21 Nov 18 (12) Petitioner Memo, subj: Notice of Promotion Delay and Possible Removal from the Fiscal Year 201 I USMC Major Promotion List, 9 August 2019 (13) HQMC, M&RA Dept Memo, subj: Promotion Recommendation in the case of [Petitioner], 1400 MMPR-1 of 28 Jul 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting multiple forms of relief arising from the reversal of his general court-martial (GCM) conviction by the Court of Appeals for the Armed Forces (CAAF). 1 This record of proceedings addresses that portion of Petitioner's application requesting that the Board reconsider its conclusion from Docket No. 8707-14 that Petitioner's request "to have his name sent to the Senate as a promotion withhold is not authorized by law or regulation, and that the board does not have the authority to recommend that his name be nominated to the Senate for promotion"; and recommend to the Secretary of the Navy (SECNAV) that: (1) the current processing of his Fiscal Year 2011 (FYl 1) Promotion Selection Withhold Notification be halted; (2) ALNAV 077/09 be modified and republished to include his name as a selectee for promotion to major and that his name be placed on a nomination scroll for promotion to major and forwarded to the Senate for confirmation; (3) ALNAV 078/16 be modified and republished to include his name as a selectee for promotion to lieutenant colonel and that his name be placed on a nomination scroll for promotion to lieutenant colonel; (4) his dates of rank to major and lieutenant colonel reflect I November 2011 and 1 May 2018 respectively; and (5) the 17 December 2015 decision of the Acting Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN (M&RA)), which purported to review and approve the dispositions of matters from BCNR Docket No. 10332-12, be rendered moot based upon the action taken by the previous ASN (M&RA) on 4 September 2014.2 2. The Board reviewed Petitioner's allegations of error and injustice on 13 January 2021, and, pursuant to its regulations, found no error or injustice regarding the matters addressed herein. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval record, and applicable statutes, regulations, and policies. 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, the Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. On 15 September 2009, Petitioner was selected by the FYl 1 USMC Major Promotion Selection Board (PSB). c. On 18 September 2009, Petitioner was convicted by a GCM of one specification of aggravated sexual assault in violation of Article 120(c)(2), Uniform Code of Military Justice (UCMJ). He was sentenced to two years of confinement and a dismissal. The convening authority subsequently approved the sentence as adjudged. On 31 January 2011, the U.S. Navy­ Marine Corps Court of Criminal Appeals affirmed the findings and the sentence. See enclosure (2). d. On 28 October 2009, the Commandant of the Marine Corps (CMC) endorsed a recommendation to withhold Petitioner's promotion due to his GCM conviction. e. On 15 December 2009, the Principal Deputy Under Secretary of Defense for Personnel and Readiness approved the FYl 1 USMC Major PSB results, converting its results to a promotion selection list and triggering the 18-month promotion eligibility period for everyone on the promotion list in accordance with 10 U.S.C. §629. f. On 1 June 2011, Petitioner's name was removed from the promotion list by operation of law in accordance with 10 U.S.C. § 629(c)(2) because he had not received Senate confirmation within 18 months following the date the promotion list was approved. This constituted Petitioner's first failure of selection (FOS) for promotion. g. On 6 March 2012, the CAAF set aside Petitioner's GCM conviction and dismissed the charge against him with prejudice. See enclosure (2). h. By memorandum dated 14 August 2012, CMC notified Petitioner that his promotion eligibility expired on 1 June 2011, and that his name was being removed from the FYl 1 USMC Major Promotion Selection List by operation of law. The memorandum noted that even if his promotion eligibility period had been extended in accordance with 10 U.S.C. §629(e), Petitioner's promotion eligibility period would have expired on I June 2012. See enclosure (3). i. On 21 August 2012, Petitioner"was not selected for promotion by the FY14 USMC Major PSB due to the adverse information related to his court-martial conviction in his record. j. By letter dated 21 December 2012 addressed to Petitioner's counsel, the Head, Military Justice Branch, Judge Advocate Division, Headquarters, USMC, distinguished Petitioner's case from that of another officer whose promotion had been delayed and which Petitioner's counsel had offered as a model solution to Petitioner's promotion dilemma. This other officer was distinguishable from Petitioner in that his promotion had been delayed subsequent to Senate confirmation, thus permitting the SECNAV to restore the officer to the promotion list and promote him pursuant to the Senate confirmation. In Petitioner's case, however, the lack of Senate confirmation left no opportunity to promote Petitioner off of the FY11 USMC Major Promotion Selection List, as he had been removed by operation of law. See enclosure (4). k. On 23 May 2013, the Board found in Docket No. 10332-12 that Petitioner's FY14 USMC Major PSB failure of selection (FOS) should be removed from his record; that his FYl 1 USMC Major PSB FOS should not be removed from his record since he was removed from the promotion list by operation of law; that a Special Selection Board (SSB) be convened to consider Petitioner for promotion by the FY12 USMC Major PSB; that a SSB should be convened to consider Petitioner for promotion with the FY13 USMC Major PSB if he is not selected by the FY12 SSB; and that "no information related to the events leading to trial, conviction, and successful appeal will be reported to any agency or DoD personnel for the purpose of calling into question [Petitioner's] fitness for future appointments." l. By memorandum dated 15 May 2014, the CMC, in advising the SECNAV to disapprove Petitioner's request for an FYI 1 USMC Major SSB, stated that there was no provision oflaw which authorized him to reinstate Petitioner to the FY11 USMC Major Promotion Selection List, or which would entitle Petitioner to an FYI 1 USMC Major SSB. The CMC also advised SECNAV that, contrary to the Board's recommendation in Docket No. 10332-12, a FY12 USMC Major SSB is not warranted because Petitioner remained on the FYI 1 USMC Major Promotion Selection List when the FY12 USMC Major PSB convened, and that Petitioner's FOS by the FY15 USMC Major PSB should also be removed from his record due to the negative implications that the PSB would have drawn from his previous non-selections. See enclosure (5). m. On 2 July 2014, Headquarters, USMC, inserted a memorandum into Petitioner's performance record indicating that Petitioner did not FOS for the FY12, FY13, FY14 or FY15 USMC Major PSBs. See enclosure (6). n. By memorandum dated 4 September 2014, the ASN (M&RA) determined that BCNR Docket No. 10332-12 should have been referred to him for decision since it was contrary to an advisory opinion (AO) provided by HQMC Judge Advocate Division.3 Accordingly, the ASN (M&RA) formally approved the findings, conclusions, and recommendation of BCNR Docket No. 10332-12, except for that part regarding the removal of Petitioner's FOS by the FYI 1 USMC Major PSB, which he directed to be removed from Petitioner's record. The ASN (M&RA) specifically stated that the decision to remove Petitioner's FYI I USMC Major PSB FOS from his record was made "as a matter of equity," as "the Marine Corps' decision to not seek a 12-month Presidential extension [of Petitioner's promotion eligibility period] undermined the statutory due process protections of 10 U.S.C. §624(d), which requires the Secretary to provide a delayed (or withheld) officer with notice and opportunity to comment on the basis for the delay or withhold prior to taking action on the officer's promotion decision." See enclosure (7). o. By memorandum dated 18 May 2015, an AO provided to the Board by the Office of the Judge Advocate General (OJAG) (Code 13) advised that Petitioner's request for reinstatement on the FY11 USMC Major Promotion Selection List is not an authorized action, as his name had been removed from the list by operation of law pursuant to 10 U.S.C. § 629. The AO also advised the Board that Petitioner cannot be eligible for an FY12 SSB because he was not eligible for the underlying FY12 USMC Major PSB since 10 U.S.C. §619(d)(l) states that a selection board "may not consider" an officer for promotion if the officer's "name is on a promotion list for that grade as a result of his selection for promotion to that grade by an earlier selection board... " See enclosure (8). p. On 30 September 2015, the Board found in Docket No. 8707-14, consistent with the 18 May 2015 OJAG AO, that Petitioner's "request to be reinstated on the FYI 1 Major promotion list, and to have his name sent to the Senate as a promotion withhold, is not authorized by law or regulation, and that the board does not have the authority to recommended that his name be nominated to the Senate for promotion." q. By memorandum dated 17 December 2015, the Acting ASN (M&RA) disapproved, contrary to the OJAG AO, that portion of BCNR Docket No. 8707-14 finding that the Board did not have authority to reinstate Petitioner on the FYI I USMC Major Promotion List, finding instead that the Board had broad authority under reference (a) to "correct any military records of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." Accordingly, the Acting ASN (M&RA) concurred with his predecessor's 4 September 2014 finding of a due process violation in the failure to extend Petitioner's promotion eligibility period, and further found that the appropriate remedy for this error was and is to treat the Petitioner as if he had been extended on the promotion list for an additional 12 months for the period of 1 June 2011 through 31 May 2012. Pursuant to this finding, the Acting ASN (M&RA) directed that Petitioner's naval record be corrected to reflect that his promotion eligibility period was extended for an additional 12 months until 1 June 2012 as authorized by 10 U.S.C. §629(c)(2), and directed that the CMC provide Petitioner with appropriate notice of his status, provide the opportunity to submit a written statement in accordance with 10 U.S.C. § 624(d)(3), and submit his promotion recommendation to the Secretary as he would have if Petitioner had been on the promotion list in March 2012 when the CAAF set aside Petitioner's GCM conviction. See enclosure (9). r. In addition to disapproving the Board's finding that it did not have the authority to reinstate Petitioner on the FYl 1 USMC Major Promotion Selection List, the Acting ASN (M&RA) also reversed the Board's finding from Docket No. 10332-12 that ..no information related to the events leading to trial, conviction, and successful appeal will be reported to any agency or DoD personnel for the purpose of calling into question [Petitioner's] fitness for future appointments," finding that this "was not required by the [CAAF] decision nor ... to remedy the error [in failing to process a 12-month extension to Petitioner's promotion eligibility period]." This decision was made "in light of the requirement for an exemplary conduct certification." See enclosure (9). s. On 18 January 2016, Petitioner amended an open complaint in the U.S. District Court for the District of Columbia, to: (1) allege that the Acting ASN (M&RA) acted arbitrarily and capriciously and contrary to law when he purported to "reverse" the final Board corrective action in Docket No. 10332-12 that "no information related to the events leading to trial, conviction, and successful appeal will be reported to any agency or DoD personnel for the purpose of calling into question [Petitioner's] fitness for future appointments"; (2) request declaratory judgment stating that the Acting ASN (M&RA)'s action to reverse this final and favorable corrective action by the Board was contrary to reference (a) and should be set aside; and (3) challenge the decision of the Acting ASN (M&RA) setting forth the steps to be taken to remedy the Petitioner's promotion position. On 1 May 2017, the Court ruled that the Acting ASN (M&RA)'s decision to reverse part of the Board's final decision in Docket No. 10332-12 was not contrary to law or regulation and that the remedy he fashioned for Petitioner's promotion process was not arbitrary or capricious. See enclosure (10) t. By memorandum dated 21 November 2018, with Petitioner "formally" restored to the FY11 USMC Major Promotion Selection List pursuant to the 17 December 2015 decision of the Acting ASN (M&RA), the CMC formally notified Petitioner that a records check revealed potentially adverse information concerning allegations that he committed aggravated sexual assault, as evidenced by several Naval Criminal Investigative Service (NCIS) Reports of Investigation (ROI), and that his promotion pursuant to his selection by the FYI 1 USMC Major PSB was being withheld pending a determination of whether he was "mentally, physically, morally, and professionally qualified for promotion." Petitioner was notified that he could submit any matters for consideration to the CMC and SECNAV. See enclosure (11). u. By memorandum dated 9 August 2019, Petitioner responded to the CMC's 21 November 2018 notification. Comparing the 21 November 2018 notice of promotion withhold to the 5 March 2010 notice that was never delivered to him for comment, Petitioner asserted that the addition of the the NCIS ROI as a new, additional basis for withhold and delay, constitutes a violation of governing regulation.4 He also asserted that the alleged sexual assault had been determined to be unsubstantiated, and noted that the Article 32, UCMJ, hearing, court-martial trial, and appeal proved the subject NCIS ROI to be flawed and inaccurate. Petitioner asserted that the 21 November 2018 notice applied a broadened definition of "adverse information" or "potentially adverse information" established in 2014, rather than the definition that was in effect at the time of the original promotion withhold, which was contrary to the Acting ASN (M&RA) directive to restore Petitioner to his status quo ante position. The Petitioner cited to the Board's 23 May 2013 decision, directing that information about Petitioner's dismissed allegation should not be submitted to Department of Defense or other authorities considering whether Petitioner should be promoted in the future. Finally, Petitioner provided a thorough discussion of the merits of the allegations made against him, to include details from the Article 32, UCMJ, hearing, which recommended that the charges which eventually went to court-martial be dismissed, as well as a detailed description of the injustices that he has endured to his career as a result of the cascade of administrative errors that arose in the aftermath of the dismissal of the court-martial charges. See enclosure (12). v. On 21 July 2020, the SECNAV formally removed Petitioner from the FYI 1 USMC Major Promotion Selection List. Petitioner was notified by memorandum dated 28 July 2020 that he was now considered to have FOS from the FY11 USMC Major PSB, and that this would be considered his first FOS. See enclosure (13). w. Petitioner makes the following contentions of injustice regarding his removal from the FY11 USMC Major Promotion Selection List:5 (1) In 1990, the Board recommended favorable action for a Navy officer whose promotion had been delayed after Senate confirmation. Petitioner asserts that the due process mechanisms pertaining to promotion "withhold" and promotion "delay" are the same, as evidenced by the fact that the ASN (M&RA) used the terms interchangeably. (2) The basis for Petitioner's promotion withhold was established by the 5 March 2010 promotion withhold notification memorandum, which only listed Petitioner's set-aside court­ martial conviction and did not mention the adverse NCIS ROis. Petitioner was never afforded the opportunity to respond to the 2010 withhold notification, but instead was required to respond to a substantially different basis for the promotion withhold decision in the 2018 notification; (3) Section 624(d)(1) did not permit the continued withholding of Petitioner's promotion because his court-martial conviction was set aside and the charges dismissed with prejudice; (4) On 4 September 2014, the ASN (M&RA) directed corrective action to treat Petitioner as if his promotion eligibility had been extended until 1 June 2012. Petitioner asserts that the ASN (M&RA)'s memorandum meant that he was to be restored to the promotion list and that the claim that he cannot be reinstated runs counter to the action taken by the ASN (M&RA); 5) By selecting him for selective continuation, the FY18 USMC Captain Continuation Board found him to be meet the requirements of exemplary conduct; and 6) Petitioner further asserts that SECNAV should have known that the failure to request a 12-month Presidential extension undermined the statutory due process protections. CONCLUSION: After careful review and consideration of all of the evidence of record and the Petitioner's contentions, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice with regard to the SECNAV's 21 July 2020 decision to remove Petitioner from the FY11 USMC Major Promotion Selection List. The Board acknowledges that Petitioner has been subjected to injustices arising from the circumstances of his court-martial conviction and subsequent dismissal, as evidenced in part by the numerous previous actions taken by the Board, the CMC, and the ASN (M&RA) to remove those injustices, but ultimately determined that every appropriate corrective action that can and should be taken in Petitioner's case has already been taken. The Board therefore found that the recent decision to remove Petitioner from the FY11 USMC Major Promotion Selection List, made subsequent to the correction of all of the previous errors and injustices, was made properly and without error or injustice. First, the Board finds no basis to reconsider its "erroneous finding and conclusion" from its 30 September 2015 determination that Petitioner's request "to have his name sent to the Senate as a promotion withhold is not authorized by law or regulation, and that the board does not have the authority to recommend that his name be nominated to the Senate for promotion," as requested by Petitioner in paragraph 8 of Appendix K to enclosure (1). At the time that decision was made, Petitioner was removed from the promotion list by operation of law in accordance with 10 U.S.C. § 629(c). In accordance with 10 U.S.C. § 624(a)(l), an officer's name must be on an approved promotion list to be forwarded to the Senate for confirmation. The Board does not have the authority to recommend foregoing the statutory procedural requirements regarding promotions, so that finding was not erroneous. As discussed below, the Board finds no error or injustice in Petitioner's most recent removal from the FYl 1 USMC Major Promotion Selection List. Accordingly, there is no basis for the Board to "reconsider" it previous decision. Next, the Board denies Petitioner's request in paragraph 9 of Appendix K to enclosure (1) that it recommend to the SECNAV that the 17 December 2015 decision of the Acting ASN (M&RA), which purported to review and approve the dispositions of matters from BCNR Docket No. 10332-12, be rendered moot based upon the action taken on it by the previous ASN (M&RA) on 4 September 2014. It is not the purview of the Board to comment on the decisions made by the approval authority on its own decisions, and the Acting ASN (M&RA)'s 17 December 2015 decision has already been upheld by the U.S. District Court for the District of Columbia. Accordingly, this request is denied. The Board acknowledges that the due process considerations for a regulatory promotion "withhold" arise from the same statutory basis as promotion "delay," as Petitioner asserted in section (B) of Appendix J to enclosure (1), but found this argument to be irrelevant because Petitioner has been afforded all process due under both Federal law and applicable regulations. Certainly the Board recognizes that it took some time for this to occur and that Petitioner has endured injustices over the past decade, but once the Acting ASN (M&RA} took the extraordinary action of extending his promotion eligibility period and restoring him to the FY11 USMC Major Promotion Selection List despite the plain language of 10 U.S.C. § 629 that would have removed him from that list by operation of law, Petitioner was made whole and all due process mandated by Federal law and regulation was afforded to Petitioner from that point forward. The Board specifically finds that the process followed for Petitioner's promotion after he was restored to the FY11 USMC Major Promotion Selection List substantially followed the post-board screening process ofMCO 1400.31C (MARCORPROMMAN). In the absence of evidence to the contrary, the Board relied upon the presumption of regularity to conclude that the NCIS ROIs upon which Petitioner's promotion withhold was based were reviewed by the Adverse Material Advisory Board (AMAB), and provided to the CMC.6 Petitioner was then afforded the opportunity to comment on the adverse information before SECNAV decided whether to remove him from the promotion selection list. Again relying upon the presumption of regularity, the Board assumes that both the CMC and the SECNAV gave fair consideration to the detailed 14-page response with 11 enclosures, dated 9 August 2019, provided by the Petitioner before recommending and then taking action to remove Petitioner from the FYl 1 USMC Major Promotion Selection List in accordance with 10 U.S.C. § 629(a). SECNAV is required by reference (b) to ensure that officers recommended for appointment meet the requirements of exemplary conduct, and the Board has no reason to question the judgment of SECNAV in this regard.7 Accordingly, the Board finds that Petitioner has now been properly removed from the FYI 1 USMC Major Promotion Selection List, and that all of the previous due process deficiencies have been corrected. The Board found no error or injustice in the fact that the 21 November 2018 withhold notice differed in content and basis from the 5 March 2010 promotion withhold notice, or in that the CMC and SECNAV did not rely upon the post-board screening for adverse information conducted in 2009 when deciding to withhold Petitioner from the FYl 1 USMC Major Promotion Selection List in 2018 and then to ultimately remove him in 2020. As established by the Acting ASN (M&RA) on 17 December 2015, the injustice in Petitioner's promotion status arose from the fact that his promotion eligibility period was never extended, and therefore his selection by the FYl 1 USMC Major PSB was not processed after the CAAF set aside his court-martial conviction. The Acting ASN (M&RA) fashioned a remedy to remove this injustice, and this remedy was upheld by the U.S. District Court for the District of Columbia. Contrary to the Petitioner's assertions, the 2018 notice substantially reflects the situation as it would have existed following the CAAF ruling. For that matter, it also reflects the situation that Petitioner would have faced in 2009 if he had never been court-martialed in the first place. Although the Board did not have these ROIs to review, it found it unlikely, if not inconceivable, that Petitioner's substantiated NCIS ROis would have been ignored by the AMAB following his selection by the FYl 1 USMC Major PSB or in 2012 after his conviction was set-aside. This potentially adverse information almost certainly would have, and certainly should have, been identified by the same post-board review of Judge Advocate files that discovered his court-martial conviction and/or by a subsequent records check in 2012 upon his return from appellate leave, it certainly met the definition of "adverse information" that then existed in DODI 1320.04,8 and the CAAF decision did not unsubstantiate the ROI findings which are subject to a much lower standard of proof. The Board believed that the exclusion of this potentially adverse information from the 5 March 2010 withhold notice was almost certainly due to the fact that his then-valid court-martial conviction would have rendered its inclusion superfluous, and that Petitioner would have been issued an updated withhold notice similar in content to the 21 November 2018 notice if his promotion eligibility period had been extended at that time. Petitioner's citations to evidence of certain officials asserting the absence of adverse information other than the court-martial conviction does not negate the obvious existence of these ROIs. The Board found all of the other differences between the 5 March 2010 notification memorandum and the 21 November 2018 notification memorandum noted by Petitioner to be either a consequence of the removal of the court-martial conviction from consideration, or to be minor and insignificant. The Board therefore finds Petitioner's argument that CMC and SECNAV were limited to the contents of the 5 March 2010 withhold notice in deciding whether to withhold and then remove Petitioner from the FY11 USMC Major promotion list to be without merit, and their consideration of the NCIS ROIs to be appropriate. The Board determined Petitioner's argument that he could not be further withheld from promotion under 10 U.S.C. §624(d)(l) because his court-martial conviction was set aside and the charges dismissed to be invalid. As discussed above, the set-aside court-martial conviction was not the only basis for Petitioner's promotion withhold- it was simply the only one which was relevant on 5 March 2010. The NCIS ROIs became relevant with regard to Petitioner's exemplary conduct and promotion status once the court-martial conviction was set aside, and he was properly notified of this basis for his promotion withhold on 21 November 2018 just as he almost certainly would have been if his promotion had been processed upon the dismissal of the court-martial charges against him. Petitioner's argument that his promotion could not be withheld because he was not provided notice before the effective date of his appointment is invalid because he never had an effective appointment date. While it is true that Petitioner's date of rank may have been adjusted upon his appointment, absent Senate confirmation he never had an effective appointment date. The Board also found invalid Petitioner's assertion that the NCIS ROIs cannot serve as the basis for Petitioner's removal from the promotion list because the Board directed on 23 November 2013 that "no information related to the events leading to trial, conviction, and successful appeal will be reported to any agency or DoD personnel for the purpose of calling into question [Petitioner's] fitness for future appointments." The Acting ASN (M&RA) disapproved this Board decision on 17 December 2015, and the U.S. District Court for the District of Columbia subsequently upheld this decision. Even if the Acting ASN (M&RA) had not rendered this previous Board decision moot, however, the Board's 23 November 2013 decision did not extend to the NCIS ROIs. Although the evidence discussed within these ROIs undoubtedly was used to obtain Petitioner's GCM conviction, the ROis are not related to the "events leading to trial, conviction, and successful appeal." Accordingly, the Board rejected this contention. Finally, the Board found the fact that the FY18 USMC Captain Continuation Board certified Petitioner's exemplary conduct to be irrelevant. The Board does not know whether that board would have been aware of the NCIS ROIs upon which SECNAV ultimately relied to remove Petitioner from the FY11 USMC Major Promotion Selection List when it selected Petitioner for continuation, but finds that determination to be irrelevant since it is SECNAV who must ultimately make such a certification to the Senate and the post-board review process is designed to ensure that that certification is intelligently made. Having found no error or injustice in the process by which Petitioner has been removed from the promotion list, the Board found no relevance in the FYI 8 USMC Captain Continuation Board decision. Having found no error or injustice in Petitioner's removal from the FYI I USMC Major Promotion Selection List, Petitioner's requests in paragraph 10 of Appendix K to enclosure (1) that the Board recommend to SECNAV that his removal from the promotion list be halted; in paragraph 11 of Appendix K to enclosure (1) that ALNAV 077/09 be modified and republished to include his name for selection to major, and that his name be placed on a nomination scroll and forwarded to the Senate for confirmation of nomination to major; in paragraph 12 of Appendix K to enclosure (1) that ALNAV 078/16 be modified and republished to include his name for selection to lieutenant colonel and that his name be placed on a nomination scroll and forwarded to the Senate for confirmation of nomination to lieutenant colonel;9 and in paragraph 13 of Appendix K to enclosure (1) that his date of rank to major and lieutenant colonel be adjusted, are denied. RECOMMENDATION: In view of the above, the Board recommends that no corrective action be taken with regard to Petitioner removal from the FYI 1 USMC Major Promotion Selection List. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 2/18/2021 Executive Director SECRETARY OF THE NAVY DECISION: Board Recommendation Approval (Relief Denied) SEP O 7 2021 Board Recommendation Disapproved (Grant Petitioner Relief; Restore him to FY11 USMC Major Promotion Selection List and forward to Senate for confirmation) Secretary of the Navy 1 I