DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 8852-20                                                           
Ref: Signature Date 


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 application on 7 January 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 the 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.  
 
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. 

The Board carefully considered your request to remove your failures of selection.  The Board considered your contentions that you have not yet received a clean, fair, accurate portrayal of your record on any regular promotion selection board, nor did you receive proper consideration by the 2 June 2020 special selection board (SSB). 

The Board noted that your record was in error when the Fiscal Year (FY) 2019 and FY 2020 USMC Lieutenant Colonel Promotion Selection Boards convened, and that you failed selection by both boards.  Your record had been corrected by the time the FY 2021 board convened, however, you were disadvantaged due to your “above zone” status, and you again failed to select.  The errors in your record, to include a fitness report and your three failures of selection, were subsequently removed via your petitions to the Marine Corps Performance Evaluation Review Board and this Board. 

Accordingly, you were granted promotion consideration by a FY 2019 SSB.  The SSB convened on 2 June 2020; you were not selected and incurred a failure of selection.  On 4 August 2020, the FY 2022 USMC Lieutenant Colonel Promotion Selection Board convened.  You were eligible, above the zone, and incurred a second failure of selection. You assert that the FY 2019 board did not have an accurate account of your time as a major, because the only in-grade observed fitness report in your record was the report that was subsequently removed.  The Board also noted that you sought out deferment of eligibility for the board in order to gain more observation time before promotion consideration.  Deferred eligibility is intended to provide officers who otherwise would have been in zone or above zone an opportunity to obtain active duty experience, qualifications, and significant evaluation before being considered by a promotion selection board.  However, pursuant to Section 619 of Title 10, United States Code, the deferment eligibility period is limited up to one year from the date the officer entered on active duty and was subject to placement on the active duty list.  The Board thus determined that, because you had been on the ADL for more than a year before the FY 2019 board convened, you did not meet the requirements for deferred eligibility, and despite your concerns regarding the extensiveness of your performance record, you were properly eligible for promotion consideration by the FY 2019 board.  It was later determined by this Board that there was material error in your record that deprived you of fair and impartial consideration by the FY 2019 board. 

The Board noted that, pursuant to SECNAV Instruction 1402.1, if an officer has failed of selection for promotion to the next higher grade before a promotion selection board more than once, and if more than one of these failures involved the same error, the officer’s case normally shall be considered by only one SSB.  Policy provides that, “[t]his SSB will be approved for the first promotion selection board that was affected by the same error . . .” Additionally, “the record of an officer presented to an SSB will be modified as necessary to reflect the record of the officer as it would have appeared to the board that should have considered the officer or, if corrected, would have appeared to the board that considered the officer.”  Therefore, a FY 2019 SSB was convened to consider you for promotion to lieutenant colonel, and in compliance with existing laws and regulations the FY 2019 SSB did not consider any material that appeared in your record after 22 August 2017, the date the regular FY 2019 promotion selection board convened.  The Board noted that since your fitness report for the reporting period 9 June 2016 to 5 June 2017 was removed from your record and replaced with an administrative filler for continuity purposes on 26 June 2019, prior to the convening of your FY 2019 SSB, the SSB reviewed your record with the administrative filler, and not the fitness report.  The Board also determined that, because your failure of selection by the regular FY 2019 promotion selection board was removed, and because your FY 2020 and FY 2021 failures of selection had also been removed, the FY 2019 SSB failure to select constituted your first failure of selection.  Had the regular FY 2019 failure of selection not been removed, you would not have incurred an addition failure of selection by the FY 2019 SSB. 
  
Having incurred a failure of selection by FY 2019 SSB, the Board also determined that you were correctly placed above the zone when considered by the FY 2022 promotion selection board, and that you incurred your second failure of selection by that board.  The Board noted that you were incorrectly omitted from the eligible population of the FY 2022 Major Continuation Board, and consequently, you are currently facing a mandatory separation date of 1 June 2021.  However, an upcoming special continuation board [w]ill consider you for continuation on active duty until retirement eligible. 

With regard to your contention that you “have not yet received a clean, fair, accurate portrayal of your record on any regular promotion selection board” the Board concluded that sufficient relief has already been granted by removing your FY 2019, FY 2020, and FY 2021 failures of selection.  Next, the Board concluded that you were correctly placed above the zone, and that there was no material error identified in your record when you were considered by the FY 2022 promotion selection board.  Lastly, the Board concluded that you did receive proper consideration by the FY 2019 SSB. 

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 attachés 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, 
1/22/2021