Docket No. 3123-20
Ref: Signature Date


Dear   
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.    
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 25 March 2021.  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 application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations, and policies.  In addition, the Board considered the advisory opinion contained in Headquarters Marine Corps letter 1070 JPL of 7 May 2020 along with your response to the opinion. 
 
The Board determined that your personal appearance, with or without counsel, would 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 review of your record shows that you entered active duty in 1990.  You were selected for O5 in Fiscal Year 2007 and were scheduled for promotion on 1 July 2006.  However, you ingested approximately 50 antidepressant pills on 28 March 2006 while at work.  This resulted in your hospitalization for three days.  As a result of your suicide gesture, you were notified on 23 June 2006 of a delay in your promotion and subsequent removal from the promotion list.  Staff Judge Advocate (SJA) review was completed on 19 July 2006 recommending that you not be promoted.  The SJA was the spouse of your Reviewing Officer (RO) for your June 2005 fitness report.  On 20 July 2006, you received an adverse fitness report covering the period 28 June 2005 through 31 May 2006 based on erratic performance of duties that included your suicide gesture and personality change that affected your performance.  On 21 September 2006, the Commandant of the Marine Corps recommended your removal from the promotion list after a legal review by Marine Corps Judge Advocate Division.  The Secretary of the Navy eventually removed you from the promotion list on 22 January 2007.  You went on to complete sufficient years of active duty service to retire on 30 June 2010. 
 
The Board carefully considered your arguments that all references to your mental health condition should be removed from your record including references to a decline in work performance.  Further you request to be returned to the list of officers promoted to O5.  You assert that your mental health issue was treated as a behavior/performance issue rather than a medical condition.  Additionally, you assert that the SJA recommendation in your case was flawed since she was married to your former Reviewing Officer who was familiar with your mental health issues.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case. 
 
First, the Board concluded that your actions on 28 March 2006 are appropriately documented in your record and other medical information regarding your condition was provided by you in response to the Marine Corps’ decision to remove you from the promotion list.  The Board was not persuaded by your argument that your 28 March 2006 actions were erroneously treated as performance issues rather than a symptom of a medical condition since your actions on that day directly impacted your assigned duties and created a question whether you were qualified to perform the duties of an O5.  The Board noted that your chain of command only documented the incident of 28 March 2006 in your fitness report and promotion list removal package and found no prohibition against the Marine Corps including that information in your record since those records were used to determined your professional fitness for promotion to a higher grade.  In the Board’s opinion, your actions on that day were highly relevant in making the decision whether you should be removed from the FY07 O5 promotion list or be considered for promotion at a later date by a promotion board.  Therefore, absent evidence that the Marine Corps violated an order or statute by including that information in your record, the Board determined those documents should remain in your record. 
 
Second, regarding your allegation that the SJA recommendation in your case was flawed based on a personal relationship between your former RO and the SJA, the Board concluded this allegation was without merit.  The Board found no evidence that SJA discussed the case with her husband or that it influenced her advice to the Commanding Officer.  Ultimately, the Board found no evidence that the SJA recommendation in your case contained any bias against you based on your mental health condition or that the recommendation included information that was not available to the SJA in normal course of business.  Based on these findings, the Board determined the preponderance of the evidence does not support a finding that the SJA recommendation in your case was erroneous or flawed.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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.   
 
Sincerely,