DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2753-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF CAPT , USMC, XXX-XX Ref: 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) United States v. [Petitioner], No. 11-0440, CAAF (3) Petitioner Memo, subj: Request for Waiver of Aviation Career Incentive Pay (ACIP) Months of Flying (MOF) Requirement, dtd 9 Jan 14 (4) HQMC Deputy Commandant (M&RA) Action Memo, subj: Aviation Career Incentive Pay (ACIP) 12 Year Month of Flying (MOF) Gate Waiver ICO [Petitioner], dtd 21 Feb 14 (5) SECNAV Memo, subj: Request for Waiver of Aviation Career Incentive Pay (ACIP) Month of Operational Flying (MOF) Requirement, dtd 15 Apr 14 (6) Petitioner Memo, subj: Request for Reconsideration of Waiver of Aviation Career Incentive Pay (ACIP) Months-of-Flying (MOF) Requirement, dtd 9 Oct 14 (7) Petitioner Memo, subj: Request for Waiver of Aviation Career Incentive Pay (ACIP) Months-of-Flying (MOF) Requirement, dtd 4 Nov 14 (8) HQMC Deputy Commandant (M&RA) Action Memo, subj: Aviation Career Incentive Pay (ACIP) 12 Year Month of Flying (MOF) Gate Waiver ICO [Petitioner], dtd 18 Nov 14 (9) Office of the SECNAV Memo, subj: Aviation Career Incentive Pay ICO [Petitioner], dtd 12 Dec 14 (10) SECNAV Memo, subj: Waiver of Aviation Career Incentive Pay Months of Operational Flying Requirement, dtd 13 Feb 15 (11) [Petitioner] v. Sean J. Stackley, Acting SECNAV, Case 1:14-cv-00479, U.S. District Court for the District of Columbia, filed 1 May 17 (12) HQMC Deputy Commandant (M&RA) Action Memo, subj: Aviation Career Incentive Pay 12 Year Month of Flying Gate Waiver in the Case of [Petitioner], dtd 13 Oct 17 (13) SECNAV Memo, subj: Waiver of Aviation Career Incentive Pay Months of Operational Flying Requirement, dtd 19 Dec 17 (14) [Petitioner] v. Sean J. Stackley, Acting SECNAV, Case 1:14-cv-00479, U.S. District Court for the District of Columbia, filed 8 Nov 18 Subj: REVIEW OF NAVAL RECORD OF CAPTAIN , USMC, XXX-XX 1. Pursuant to the provisions of the reference, 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 a 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 recommend to the Secretary of the Navy (SECNAV) that he reconsider and approve Petitioner's original continuous Aviation Career Incentive Pay (ACIP) months of flying (MOF) flight gate I waiver request of 9 January 2014, to be effective as of his 12-year aviation service anniversary on 21 May 2014; and further recommend, in conjunction with the SECNAV's approval of the 9 January 2014 ACIP flight gate 1 waiver, that the Deputy Assistant Secretary of the Navy (Military Manpower and Personnel) (DASN (MMP)) retroactively approve a waiver of continuous ACIP flight gate 2 requirements, to be effective as of Petitioner's 18-year aviation service anniversary on 21 May 2020.2 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 warranting correction. 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 regulations within the Department of the Navy. b. Petitioner was commissioned as a Second Lieutenant in the Marine Corps upon his graduation from the United States Naval Academy on 25 May 2001. He began his service as a Marine Corps aviator on 21 May 2002. See enclosure (I). c. On 15 September 2009, Petitioner was selected by the Fiscal Year 201l(FYI 1) USMC Major Promotion Selection Board (PSB). d. 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. He was sentenced to two years of confinement and a dismissal. The convening authority 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). e. On 6 March 2012, the CAAF set aside Petitioner's GCM conviction and dismissed the charge against him with prejudice. See enclosure (2). f. On 11 April 2012, Petitioner received Permanent Change of Assignment (PCA) orders transferring him from the Navy and Marine Corps Appellate Leave Activity at the Washington Navy Yard to Training and Education Command (TECOM) at Marine Corps Base Quantico. g. On 6 July 2012, Petitioner completed an annual flight physical in accordance with his PCA orders directing that he maintain the flight physiology requirements of OPNAVINST 3710.7. In late July 2012, Petitioner submitted an application to convert from being an AV-SB Harrier pilot to an F-35 pilot. h. By memorandum dated 9 January 2014, Petitioner requested a waiver of the ACIP MOF requirement for the Gate 1 flight gate from the SECNAV in accordance with OPNAVINST 7220.18 and SECNAVINST 7220.87.3 See enclosure (3). This waiver would have allowed Petitioner to receive continuous monthly ACIP beyond the 12-year anniversary of his flight status on 21 May 2014 despite not having reached the MOF Gate 1 requirement of 96 months of operational flying within those first 12 years to retain ACIP. i. By signature dated 21 February 2014, the USMC Deputy Commandant for Manpower and Reserve Affairs endorsed Petitioner's ACIP MOF Gate 1 waiver, and strongly recommended approval. This memorandum stated that Petitioner had accumulated 72 of the required 96 MOF during his 12 years of aviation, and would fail his 12-year ACIP MOF Gate 1 absent the waiver on 21 May 2014. See enclosure (4). j. By memorandum dated 11 April 2014, the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN (M&RA)) recommended that SECNAV disapprove Petitioner's ACIP MOF waiver request since Petitioner was, at that time, set to be discharged on 1 July 2014 due to his failure-of-selection by the FYI 1 and FY15 USMC Major PSBs. See enclosure (11). k. By memorandum dated 15 April 2014, SECNAV disapproved Petitioner's 9 January 2014 waiver request. See encJosure (5). l. On 26 June 2014, the Board found in Docket No. 5679-14 that Petitioner's FY15 USMC Major PSB non -selection should be removed because "his record, as it stood before the FY15 board, did not include any clarification that he had not failed of selection by the FY12, FY13, or FY14 boards." The Board also found that any discharge or other action based in any way on Petitioner's failure of selection by the FY15 USMC Major PSB should be cance11ed. m. By memorandum dated 4 September 2014, the ASN (M&RA) disapproved the Board's determination in Docket No. 10332-12 Petitioner's failure of selection by FY11 USMC Major PSB should not have be removed from this record, and directed its removal. n. By memorandum dated 9 October 2014, Petitioner requested that SECNAV reconsider his previous waiver denial. To support this request, Petitioner informed SECNAV that he was not pending separation from the Marine Corps, since all of his failures of selection had been removed from his record by either the Board or, in the case of his FY11 USMC Major PSB non­selection, by the ASN (M&RA). He also accused two junior staff officers of hiding the favorable recommendation from the USMC Deputy Commandant from SECNAV and improperly having SECNAV consider his set-aside court-martial conviction. 4 See enclosure (6). o. By memorandum dated 4 November 2014, Petitioner again requested that SECNAV waive the MOP requirement for the Gate 1 flight gate in accordance with OPNAVINST 7220. l and SECNAVINST 7220.87. He reiterated his arguments from his 9 October 2014 memorandum, and further argued in this request that his opportunity to perform his primary military duty, and therefore to achieve the required MOF requirement, was unlawfully denied by his unconstitutional court-martial conviction. See enclosure (7). p. By memorandum dated 18 November 2014, the USMC Deputy Commandant for Manpower and Reserve Affairs again endorsed Petitioner's ACIP MOP waiver request, strongly recommending approval. See enclosure (8). On 12 December 2014, the ASN (M&RA) also recommended approval of Petitioner's waiver request.5 See enclosure (9). q. By memorandum dated 13 February 2015, SECNAV again denied Petitioner's ACIP MOP waiver request, despite the favorable recommendations. In denying this request, SECNAV noted that Petitioner's eligibility for continuous ACIP expired on 21 May 2014, but that he may still qualify for entitlement to conditional ACIP. See enclosure (10). r. On 1 May 2017, the U.S. District Court for the District of Columbia found SECNAV's 13 February 2015 denial of Petitioner's ACIP MOP waiver to be arbitrary and capricious because it was not supported by sufficient reasoning, and remanded the waiver request to SECNAV for further consideration and clarification. See enclosure (11). s. By memorandum dated 13 October 2017, the USMC Deputy Commandant for Manpower and Reserve Affairs recommended that SECNAV reconsider Petitioner's ACIP MOF waiver request. See enclosure (12). t. By memorandum dated 19 December 2017, SECNAV again disapproved Petitioner's ACIP MOF waiver request, finding that its approval does not meet the needs of the service. SECNAV noted that Petitioner just barely met the statutory six-year minimum of qualifying service to apply for a waiver, and that Petitioner's qualifying duties are almost three years short of the statutory entitlement to ACIP. SECNAV also declined to speculate how the Marine Corps would have assigned Petitioner but for his set-aside court-martial conviction. Finally, SECNAV noted that his review of Petitioner's personnel records revealed that Petitioner consistently ranked in the bottom two-thirds of his peer group by his reviewing officers, and that his reviewing officers have evaluated him as performing better than only about 18 percent of his peers. According, SECNAV was not inclined to exercise his discretion to grant Petitioner a waiver for continuous ACIP eligibility. See enclosure (13). u. On 8 November 2018, the U.S. District Court of the District of Columbia found SECNAV's 19 December 2017 decision denying Petitioner's ACIP MOF waiver not to be arbitrary or capricious, nor contrary to law or pertinent regulations. It found that SECNAV had explained in detail why he denied the waiver request, and that his decision was entitled to great deference. The Court also found that SECNAV was not required to obtain recommendations from Petitioner's chain of command, as Petitioner's had contended. See enclosure (14). v. Petitioner contends that the decision to deny his ACIP MOF waiver request was unjust due to the circumstances of his unconstitutional court-martial conviction. He believes that it is unjust to hold his lack of operational flight time against him because he was told that he could not compete for assignments that might provide the necessary flight time until his promotion withhold issue was resolved, and that he was told that he was on a "legal hold" even though he was neither awaiting disciplinary proceedings nor the subject of an ongoing investigation. This exclusion from the assignment process, he asserts, was an arbitrary departure from service-level policy that was applied only to him and he was not assigned according to the needs of the service, career profession, overseas control date, or individual preference. Petitioner claims to have done everything within his power to get back on track for a normal career progression following CAAFs set-aside of his conviction. He re-established contact with Officer Assignments in March 2012 to assist with the process of getting his career back on track, he submitted formal requests to return to the aviation community and he communicated a desire for continued aviation service while maintaining the flight physiology requirements. Additionally, Petitioner asserts that it was unjust for the waiver decision to consider his ratings relative to his peers because those ratings are also unjust since the circumstances have rendered him incapable of receiving competitive ratings relative to his more junior peers who have not endured the same career adversity. As evidence of the injustice of the ACIP MOF flight gate waiver denial, Petitioner provided evidence that of the 59 ACIP MOF waiver requests submitted to SECNAV between 30 June 2013 and 1 May 2016, his requests were the only two denied. CONCLUSION: After careful review and consideration of all of the evidence of record, the Board found insufficient evidence to establish the existence of probable material error or injustice in Petitioner's lack of eligibility for continuous ACIP. In reaching this conclusion, the Board noted that in accordance with OPNAV Instruction 7220.18 (Aviation Incentive Pay and Bonus Program), ACIP is "restricted to regular and reserve officers who hold ... aeronautical designation ... and who engage and remain in aviation service," and "[t]o be entitled to continuous monthly incentive pay, an officer must perform the prescribed operational flying duties (including flight training but excluding proficiency flying) for 8 of the first 12, and 12 of the first 18 years of the aviation service of the officer." Regardless of the circumstances, Petitioner has not been engaged in operational flying duties for at least the last 11 years; continuous ACIP is simply not intended to be authorized for someone so far removed from aviation service. The Board noted that Petitioner may qualify for conditional ACIP, and that SECNAV notified Petitioner that he may still qualify for conditional ACIP in his 13 February 2015 waiver denial. The Board considered Petitioner's contentions that he was told that he could not compete for aviation assignments until his promotion withhold issue was resolved and that he was excluded from the assignment process, and acknowledged Petitioner's unconventional assignment complexities after the dismissal of his court-martial charges. However, the Board found no evidence that the Marine Corps deliberately delayed or interfered with Petitioner's duty assignments. Moreover, the Board relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. The Board also considered the evidence provided by Petitioner that the only ACIP MOF gate I waiver requirements between 30 June 2013 and I May 2016 that were denied were the two that he submitted, but found this information to be unhelpful since it could not compare the Petitioner's circumstances to those considered in the other waiver requests. The Board also considered Petitioner's contention that it was unjust for the SECNAV's waiver decision to be based, in part, on his ratings relative to his peers because those ratings are themselves tainted by the circumstances which have rendered him incapable of receiving competitive ratings relative to his far more junior peers. In this regard, the Board found no error or injustice in Petitioner's fitness reports in Docket No. 0727-20. Accordingly, the Board also found no error or injustice in the consideration of those ratings as part of the waiver decision. Finally, the Board considered Petitioner's argument that the record shows that it is in the interest of the USMC to incentivize him to remain in aviation service. However, the SECNAV has determined otherwise three times now. Even if his first denial was ill-informed, neither the second nor the third were. He has made this decision contrary to the recommendations of Petitioner's chain of command, and in at least one occasion contrary to the recommendation of the ASN (M&RA). Further, the U.S. District Court for the District of Columbia has determined that this decision was not arbitrary and capricious, nor contrary to law or regulation. Under these circumstances, the Board could not agree with Petitioner's assertion that the record shows it to be in the interests of the service to incentivize Petitioner to remain in the aviation service when the person responsible for making that determination has so decisively determined otherwise. Based upon its determination that there is no error or injustice in SECNAV's previous waiver denial, the Board also found no merit in Petitioner's second request that DASN (MPP) retroactively approve, upon request, a waiver of the ACIP 18-month MOF requirements. RECOMMENDATION: In view of the above, the Board recommends that Petitioner's request for reconsideration of SECNAV's previous ACIP MOF waiver denial be disapproved. 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: SEP O7 2021 Board Recommendation Approved (Previous Waiver Denial Upheld). Petitioner Request Approved (ACIP MOF Gate l Requirement Waived; Recommend Approval of Gate 2 Requirement Waiver upon request) Secretary of Navy