DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3994-20 Ref: Signature Date SSGT Dear Staff Sergeant : This is in reference to your reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised in our letter dated 22 March 2007 that your request was partially granted. After careful and conscientious consideration of your new matter, not previously considered by the Board, the Board found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although you did not submit your application in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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 three-member panel of the Board, sitting in executive session, considered your application on 24 August 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. The Board also considered the 27 July 2020 advisory opinion (AO) furnished by Marine Corps Recruiting Command (MCRC), which was previously provided to you on 1 September 2020, and you were given 30 days in which to submit a response. After enlisting in the United States Marine Corps in 1998, you applied and entered the Enlisted Commissioning Program (ECP), attending Officer Candidate School (OCS) in 2000. You were disenrolled from the school in November 2000 and transferred to Marine Corps University while an evaluation took place to determine whether you were physically qualified to return to OCS. In August 2001, while at MCU, you filed an Equal Opportunity complaint regarding hostile work conditions and requested mast. In October 2001 and May 2002, you received Page 11 entries and notification of removal from the ECP due to being the subject of a command investigation. In June 2002, you requested early administrative commissioning as you would be over the age of 35 prior to graduating OCS and would be ineligible for commissioning as a Regular component officer; this request was denied. In January 2003, you were referred to Special Court-Martial on charges alleging violations of Article 93 and 134 of the Uniform Code of Military Justice (UCMJ). On 11 February 2004, you underwent Special Court-Martial and were acquitted of all charges and specifications. In your first petition to the Board (Docket # ) you requested removal of two Administrative Remarks Page 11 counseling entries dated 5 October 2001 and 17 May 2002 with a rebuttal dated 22 May 2002. You further requested to be ordered to OCS or granted a Regular officer commission as of 14 December 2001, or granted a Reserve commission, or appointed as a warrant officer. The Board determined that the Page 11 entries warranted an injustice and removed the Page 11 entries and your rebuttal. The Board denied your request to be ordered to OCS, or granted a Regular or Reserve commission or appointed as a warrant officer. The Board found that you had not exhausted your administrative remedies, in that based on the Board’s decision you could request to attend OCS, or be appointed a warrant officer. You were medically retired as an E-6 staff sergeant in November 2009. The Board carefully considered your request to modify your official military personnel file (OMPF) to reflect that you were commissioned as a Second Lieutenant (O-1) in the United States Marine Corps Reserve. You further contend that your request in 2002 for administrative commission was disapproved due to unlawful command influence, as at the time the laws pertaining to commissioning of officers allowed Reserve officers to be commissioned prior to completing OCS. The AO of 27 July 2020 recommended denial of your request, noting that you did not meet the service requirements to receive a commission as outlined in MCO 1040.43A Enlisted to Officer Commissioning Programs --- specifically, you did not successfully complete OCS. The AO also noted that you did not submit an application for appointment to the Warrant Officer Program. The Board concurred with the AO that by not completing OCS you did not meet the qualifications to receive an administrative promotion to the rank of Second Lieutenant. In addition, the Board determined the denial of your request for administrative commissioning in 2002 was not unjust, as there was still an opportunity for you to complete OCS and receive a reserve commission. Although you could have legally be given a Reserve appointment without successfully completing OCS, there was no requirement that this occur. Regarding your allegation of unlawful command influence, the Board determined there was insufficient evidence to support your contention. The Board thus concluded that the evidence provided does not overcome the presumption of regularity to warrant modification of 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, 9/20/2021 Excutive Director