DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2581-18 AUG 13 2018 From: Chairman, Board for Correction of Naval Records To: Secretary ofthe Navy Ref: (a) lOU.S.C. §1552 (b) MCO P5800.16A W/CH 1-7 (LEGADMINMAN) Encl: (1) DD Form 149 (2) Petitioner's rebuttal of25 Jun 18 (3) HQMC memo 1070 JPL of 8 May 18 (4) HQMC memo 1610 MMRP-50 of 14 May 18 1. Pursuant to the provisions ofreference (a), Petitioner, a Marine Corps Officer, filed enclosure (1) with this Board requesting his record be corrected by removing the Board oflnquiry (BOI) derogatory material associated with a previously removed Administrative Remarks (Page 11) entry, and by removing his failures ofselection (FOSs) incurred by the FYI 8 and FYI 9 Captain Promotion Selection Boards from his official military personnel file (OMPF). 2. The Board, consisting of review Petitioner's allegations of error and injustice on 28 June 2018 and, pursuant to its regulations, determined the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted ofthe enclosures, relevant portions of Petitioner's naval records, and applicable statutes, regulations, and policies. In addition, the Board considered the advisory opinion (AO) provided by Headquarters Marine Corps (HQMC MMRP-50) dated 14 May 2018, the AO provided by HQMC Legal (JPL) dated 8 May 2018, and Petitioner's rebuttal statement with enclosures. 3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department ofthe Navy. b. Petitioner contended that it was material error for the BOI documentation to remain in his record after the Board, in a previous decision, removed an associated Page 11 counseling. Additionally, Petitioner contended the derogatory material in his record is not synonymous with, nor does it adequately represent, the quality of Marine that he, and his fellow service members, know him to be. Petitioner also contended his FOSs by the FY18 and FY19 Captain Promotion Selection Boards were erroneous because his non-selection results were solely associated with the Page 11 counseling that impaired the competitiveness ofhis record. See enclosures (1) and (2). c. In correspondence attached as enclosure (3), the office having cognizance over the subject matter addressed in Petitioner's application recommended denial ofhis request to remove the BOI documentation because Petitioner has not provided substantial evidence demonstrating the existence ofprobable material error or injustice warranting removal. The AO states the BOI found Petitioner's performance was substandard due to his failure to demonstrate acceptable qualities ofleadership required ofan officer in his grade based upon his "repeated albeit inadvertent involvement with controlled substances". The AO states "a BOI's substantiated findings ofmisconduct or substandard performance ofduty must be included in an officer's Official Military Personnel File (OMPF) to 'provide a complete record ofmisconduct and its disposition'." As required by reference (b ), Petitioner acknowledged the notification that the adverse material concerning the incident would be included in his OMPF. The AO also determined it was not error for the BOI to consider the facts underlying Petitioner's 19 December 2014 positive urinalysis for oxymorphone. Lastly, the AO concluded the BOI notification was not inadequate. d. In correspondence attached as enclosure ( 4), the office having cognizance over the FOS subject matter addressed in Petitioner's application has recommended removal ofPetitioner's FOS by the FY 18 Captain Promotion Selection Board. In subsequent discussion with the AO author after the release ofthe FY19 Captain Promotion Selection Board, the AO author recommended the removal ofthe FOS by the FY19 Captain Promotion Selection board. CONCLUSION Upon review and consideration ofall the evidence ofrecord, and especially in light of enclosures (2) and (3), the Board finds the existence ofan injustice warranting partial relief. The Board, relying on enclosure (3), denied Petitioner's request to remove the BOI documentation in his OMPF. The Board determined it was not error or unjust for the BOI documentation to remain in Petitioner's OMPF because the Board presumed regularity and concluded the BOI followed the proper procedures. The Board, relying on enclosure ( 4), determined the previous removal ofa Page 11 entry was a substantive change to Petitioner's record, and since the error could likely have led to Petitioner's FOS, the Board concluded the FOSs incurred by the FY 18 and FY 19 Captain Promotion Selection Boards shall be removed. RECOMMENDATION In view ofthe foregoing, the Board finds the existence of an injustice warranting the following partial corrective action. Petitioner's naval record be corrected by removing his failures of selection incurred by the FY 18 and FY 19 Captain Promotion Selection Boards from his OMPF, and that he be considered by the earliest possible selection board convened to consider In-Zone officers ofhis category for promotion to Captain as an officer who has not failed of selection for promotion to that grade. No further relief be granted. 4. It is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6( e) ofthe revised Procedures ofthe Board for Correction ofNaval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority ofreference (a), has been approved by the Board on behalf of the Secretary of the Navy.