Docket No.4180-20 
 

 
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.    
 
A three-member panel of the Board, sitting in executive session, considered your applications on 17 June 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 applications, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies.   
 
The Board carefully considered your request for reinstatement on the Fiscal Year (FY) 2019 USMCR Major Promotion List and to be promoted to major commensurate with your FY 2019 selection, with backpay and allowances.  The Board considered your contention that you were  improperly denied promotion after Headquarters Marine Corps (HQMC) failed to process your response to a promotion withhold.  You assert that your Commanding Officer and Commanding General supported your reinstatement on the promotion list, but because HQMC purportedly mishandled and lost the action, your promotion packet was never sent to the Commandant of the Marine Corps.  You also assert that following this error, you were transferred to the Inactive Status List (ISL), and once your promotion packet was resubmitted to HQMC, you were denied promotion due to your transfer to the ISL.  You argue that you should have been promoted over a year prior to your transfer to the ISL.  Lastly, you contend that Section 624 of Title 10, United States Code required that you be promoted once the investigation concluded without any findings of misconduct against you.  
 
 
On 23 May 2018, you were notified of your promotion withhold and possible removal from the FY 2019 USMCR Promotion List after a records check revealed potentially adverse information that you allegedly revealed classified information in interviews you conducted with media outlets.  An investigation found that the alleged misconduct was unsubstantiated.  Subsequently, your command forwarded your 4 December 2018 request for promotion, and its 20 December 2018 favorable endorsement, to the Secretary of the Navy via the Commanding General, Marine Corps Combat Development Command and HQMC.  After several months and an inexplicable delay in the processing of your promotion packet, you were notified of the promotion withhold case closure due to your 10 August 2019 transfer to the ISL.   
 
The Board noted that Public Law requires officers to obtain a minimum of 27 Reserve Retirement Points per year to be retained in the Individual Ready Reserve (IRR) beyond their military service obligation, and that officers who earn less than 27 Reserve Retirement Points will be automatically transferred to the ISL of the Standby Reserve.  The Board noted that you earned a satisfactory Anniversary Year in 2017, but failed to earn a satisfactory Anniversary Year in 2018 and 2019.  Consequently, on 10 June 2019, the Director, Marine Corps Individual Reserve Support Activity (MCIRSA) sent to you via certified mail, notification that you were being transferred from the Reserve Active Status List (RASL) to the ISL based on non-participation in the Marine Corps Reserve.  You were encouraged to request a return to an active status and you were offered alternative courses of action in order to avoid transfer to the ISL, which included your opportunity to request a waiver of the minimum participation requirements.  Unfortunately, the certified mail was returned undeliverable.  You were transferred to the ISL on  10 August 2019 where you remain to date.    
 
The Board noted that members of the IRR are required to notify the MCIRSA of any change of primary residence and/or mailing address, telephone, marital status, number of dependents, civilian employment, change in medical condition, or any other change affecting potential mobilization.   Also, a Reserve Marine may be determined to be an unsatisfactory participant for failure to keep the Director, MCIRSA informed of their primary residence address and telephone number. 
 
The Board thus determined that, although it appears there may have been an administrative oversight in the timely processing of your promotion packet, it was your responsibility to earn satisfactory Anniversary Years to avoid transfer to the ISL, and to notify the MCIRSA of any change of primary residence and/or mailing address.  The Board determined that you failed to do either and were consequently transferred to the ISL prior to the Secretary of the Navy’s determination whether you were mentally, physically, morally and professionally qualified for promotion.  
 
The Board noted that pursuant to Sections 10152 and 14317 of Title 10, United States Code, as well as SECNAV Instruction 1420.3 and SECNAV Instruction 1920.6D, when an officer is recommended for promotion by a Reserve promotion selection board, but is transferred to an inactive status before promoting, even if subsequently returned to an active status in the Reserves, the officer shall be treated as if the officer had neither been considered nor recommended for promotion by that promotion selection board.  Furthermore, the officer may not be placed on a promotion list or promoted to the higher grade after returning to an active status unless the officer is again recommended for promotion by a promotion selection board.  Members transferred from the ISL to the RASL are eligible for promotion consideration once the member serves on the RASL for at least one year prior to the convene date of their respective promotion selection board.   
 
With regard to your contention that Section 624 of Title 10, United States Code required that you be promoted, the Board noted that this section of law pertains to members on the Active Duty List, and it is not applicable to officers on the RASL.   
 
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, 
6/29/2021
Executive Director