Dear This letter 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 the entire record, the Board for Correction of Naval Records (Board) found insufficient evidence to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board sitting in executive session considered your allegations of error and injustice on 6 October 2020 pursuant to the order from the United States Court of Federal Claims (Court), dated 22 April 2020. The names and votes of the panel members 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. The Board also considered your 1 May 2020 request for reconsideration, as well as all other matters previously considered by the Board in accordance with procedures that conform to the requirements of Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). Regarding your request for a personal appearance, the Board determined that such an appearance, with or without counsel, would not materially add to its 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. The Board denied your original request for relief on 19 March 2009 (Docket No. 10607-08). On 4 April 2011, you filed a complaint with the Court, contending that the purpose of awarding constructive service credit (CSC) is to “approximate equality, for rank and pay purposes, between the officer who enters active service on completion of a baccalaureate degree, and the officer who instead elects to pursue graduate education.” You argued that the Marine Corps’ application of CSC to your record under SECNAVINST 1120.9A was arbitrary, capricious, and contrary to law. On 15 December 2016, your case was remanded to the Board by the Court with instructions to reconsider your argument that CSC was not properly awarded to you. Upon remand, the Board considered your contentions (Docket No. 11194-16), and again denied your contentions on 28 April 2017. In December 2017, you filed a supplemental complaint with the Court. On 25 September 2019, the Court heard oral argument on the four counts pending before it. In the four counts before the Court, you articulated overlapping theories as to why the Board’s denial of your request to backdate your date of rank was legally invalid. On 13 November 2019, the Court dismissed Counts I and II of your Amended Complaint, and Count IV of your supplemental complaint, for failing to state a claim upon which the Court may grant relief. In the alternative, the Court determined that the Board’s decision with regard to these Counts was “neither arbitrary and capricious nor inconsistent with the law.” The Court determined that one of the four counts stated a claim upon which it may grant relief, but stayed further proceedings and remanded it to the Board for consideration of whether SECNAVINST 1120.9A’s application of CSC at designation is an arbitrary and capricious exercise of the Secretary of the Navy’s (SECNAV) discretion. Upon remand, the Board considered your contentions (Docket No. 10681-19), and on 22 January 2020 it again denied your request for relief. On 20 April 2020 you filed a status report with the Court indicating that you had new, material evidence that warrants the Board’s reconsideration of its January 2020 decision. Specifically, you indicated that you had since obtained “affidavits by very senior Marine Corps judge advocates which detail the fact that student judge advocates have no control over the timing of the [Basic Law Course] class or which one they attend, which in turn results in arbitrary, capricious, and inequitable application of CSC.” On 22 April 2020, the Court on 22 April 2020 remanded the case to the Board for the purpose of considering your request for reconsideration. A review of your record shows that you first entered the Marine Corps on 13 March 2001 through the Platoon Leaders Course (Law). After completing Officer Candidate School, on 13 October 2001 you were commissioned as a second lieutenant in the United States Marine Corps Reserve, with a military occupational specialty (MOS) designator of 4401 (Student Judge Advocate). You earned your Juris Doctorate on 25 May 2002 and were admitted to the practice of law in on 14 March 2003. You reported to The Basic School (TBS) for training on 12 June 2003 and graduated on 12 December 2003. While attending TBS, you were promoted to first lieutenant on 13 October 2003 based on your time in grade as a second lieutenant. In January 2004, you reported to the Naval Justice School (NJS) to attend the Basic Lawyer Course (BLC). On 25 February 2004, while a student in the BLC, you were offered CSC, which would advance you on the lineal list in the permanent grade of first lieutenant with a date of rank of 13 October 2001, and adjust your initial commissioning date to 13 October 1999. In accordance with SECNAVINST 1120.9A,1 however, CSC was not applied until your designation as a Marine Corps judge advocate following graduation from the BLC.2 On 5 March 2004, upon your graduation from BLC you were designated as a judge advocate and awarded the MOS 4402 (Judge Advocate). On 19 March 2005, CSC was entered in the Manpower Management System and applied to your record effective 5 March 2005. Accordingly, your date-of-rank first commission date was changed from 13 October 2001 to 13 October 1999, your first lieutenant date of rank was changed from 13 October 2003 to 13 October 2001, and your lineal control number (LCN) was changed from 07256000 to 04566500. 1 As you noted in your 1 May 2020 letter to the Board, this instruction has been succeeded by SECNAVINST 1120.9B. SECNAVINST 1120.9A is referenced herein, however, because it was the controlling regulation at the relevant time period. 2 SECNAVINST 1120.9A, Section 8(c)(3), provides that “[a]n individual who was initially appointed as a Marine Corps Reserve officer in the … Platoon Leaders Class (Law) Program … shall be credited upon designation as a judge advocate with … constructive service credit.” (Emphasis added). On 9 February 2004, prior to your graduation from the BLC and designation as a judge advocate, the SECNAV convened a selection board to recommend eligible first lieutenants for promotion to captain during FY 2005. You were not eligible for consideration by this promotion board because your first lieutenant date of rank prior to the application of CSC (13 October 2003) was below the zone of consideration.3 In February 2005, you were eligible, above zone not previously considered, for consideration by the FY 2006 Marine Corps Captain Promotion Selection Board. On 11 May 2005, the SECNAV announced your selection for promotion to captain. Your adjusted LCN resulted in you being the second of 941 officers promoted to captain from the FY 2006 Captain Promotion List, with a promotion date of 1 August 2005. You were later selected for promotion to major and lieutenant colonel, with a promotion dates of 1 September 2011 and 1 November 2017, respectively. 3 The date of rank of the junior officer in-zone for the FY 2005 promotion selection board was 24 March 2003. In accordance with the Court’s 22 April 2020 order, the Board carefully considered the claim articulated in your 1 May 2020 request for reconsideration that the Marine Corps’ application of Marine Corps Order (MCO) P1400.31C is arbitrary and capricious when considering the timing of its application and failing to apply the CSC as directed by MCO P1400.31C at the time of the Marine Corps’ choosing. In this regard, the Board noted that this claim was different than the claim asserted to the Court and remanded to the Board for reconsideration (i.e., Count III). Whereas the Board previously considered whether SECNAVINST 1120.9A’s application of CSC upon designation as a Marine Corps judge advocate was an arbitrary and capricious exercise of the SECNAV’s discretion, your 1 May 2020 letter to the Board subsequent to the present remand order asked the Board to consider whether the Marine Corps’ application of MCO P1400.31C is arbitrary and capricious when considering the timing of its application of CSC. The Board noted that MCO P1400.31C governs Marine Corps promotions, and not the application of CSC. As discussed below, the Board does not believe that the Marine Corps applies MCO P1400.31C in the application of CSC, and disagrees with your argument that MCO P1400.31C directs the Marine Corps to apply CSC in such a manner as to ensure promotion eligibility parity with those officers commissioned close in time. Accordingly, the Board considered the question of whether the provisions of SECNAVINST 1120.9A, which provide that Marine Corps Reserve officers will receive CSC upon being designated as a judge advocate rather than upon appointment, rather than MCO P1400.31C, represent an arbitrary and capricious exercise of the SECNAV’s discretion. In reconsidering its previous decision (Docket No. 10681-19), the Board carefully considered the new evidence you presented as well as the assertions made in your 1 May 2020 letter to the Board. Specifically, the Board considered the affidavit you provided from a retired Marine Corps judge advocate, which indicated in relevant part that the Navy reduced the number of BLC classes in either 2015 or 2016, that Marine Corps judge advocate students (MOS 4401) have no input in when they will attend the BLC, and that BLC had a very high graduation rate. It also considered the FY 2020 TBS and NJS calendars that you provided for review. Neither this new evidence, nor the assertions made in your 1 May 2020 letter, caused the Board to change its previous decision. The Board found none of the new evidence provided to be relevant, as neither the affidavit nor the calendars provided information regarding the conditions as they were at the time that your CSC was applied. However, even assuming a very high BLC graduation rate and the fact that judge advocate students do not have control over when they will attend BLC, as this new evidence purported to prove, the Board did not find the application of CSC for Marine Corps Reserve officers upon designation as a judge advocate to be arbitrary or capricious. Contrary to the assertions made in your 1 May 2020 letter, the Board found that the Marine Corps cannot apply CSC at its discretion. Rather, the Marine Corps is bound to apply CSC at the time that the officer is designated as a judge advocate IAW SECNAVINST 1120.9A. As it did in its previous decision, the Board noted that Marine judge advocate candidates are distinguishable from their Navy, Army, and Air Force counterparts in that they are line officers, and that those who fail to be designated as judge advocates will typically continue to serve in a different capacity. By contrast, judge advocates in the other services who fail to become certified typically will be separated from their respective service and will not be redesignated as a different type of officer. For this reason, the Board not only finds the application of CSC for Marine Corps Reserve officers upon designation as a judge advocate not to be arbitrary and capricious, but also finds this requirement to be necessary and prudent. Even assuming a very high BLC graduation rate, the Board believes that it would be imprudent to apply CSC for these officers before the date they are designated as judge advocates because doing so would provide an unwarranted, and arguably illegal benefit for the small percentage of officers who fail to graduate from BLC. Further, the Board was not convinced by your argument that the lack of control that a judge advocate candidate has upon when they will attend the BLC renders the SECNAVINST 1120.9A CSC application provision arbitrary and capricious. As this provision is applied consistently to all Marine Corps Reserve officers in your position, and is necessary to avoid situations such as that described above, the Board did not find the relevant provision of SECNAVINST 1120.9A to arbitrary and capricious. Accordingly, the Board found no error or injustice in the application of the SECNAVINST 1120.9A provisions to apply your CSC at the time of your designation as a judge advocate. The Board also rejected your contention that the award of CSC is necessarily intended to affect promotion eligibility. The application of CSC, which is governed by 10 U.S.C. §12207, operates separately from the promotion process, which is governed by 10 U.S.C. §624. Section 12207(e) of Title 10, U.S.C., provides that “[c]onstructive service credited an officer … shall be used only for determining the officer’s – (1) initial grade as a reserve officer; (2) rank in grade; and (3) service in grade for promotion eligibility.” As the Board stated in its previous decision in your case (Docket No. 11194-16), there is a difference between “service in grade for promotion eligibility” and “eligibility for promotion.” Accordingly, the application of CSC was not intended to necessarily make you eligible for promotion. Therefore, the Board rejected your contention that you were not promoted with your “commissioning peer” constituted an error or injustice. Finally, the Board rejected your argument that because MCO P1400.31C states that CSC “provides grade and rank comparability for an officer who begins Marine Corps commissioned service after obtaining a baccalaureate degree,” that officers receiving CSC should be promoted in tandem with their “commissioning peer.” MCO P1400.31C makes no direction regarding the timing or application of CSC; it merely defines what CSC is.4 It certainly does not provide, as you argue, that a Marine Corps Reserve judge advocate who receives CSC will be promoted at the same, or close in time to, other similarly situated officers appointed at the same time. When your CSC was applied upon your designation as a judge advocate, your grade and rank was, in fact, adjusted to be comparable to what it would have been if you had entered the Marine Corps commissioned service after obtaining a baccalaureate degree. The Board found this to be the proper interpretation of MCO P1400.31C. 4 See MCO P1400.31C, paragraph 1021(2). The Board concluded that your claims of error and injustice are the result of an incorrect interpretation of the relevant statutes and regulations pertaining to the awarding of CSC and promotion of officers within the military. Additionally, the Board did not find the provisions of SECNAVINST 1120.9A applying CSC for Marine Corps Reserve officers only after designation as a judge advocate to be arbitrary and/or capricious. Accordingly, the Board found no error or injustice warranting relief in your case, and denied your application. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek further relief, at no cost to the Board, from a court of appropriate jurisdiction. 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,