DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5471-18 NOV 03 2018 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) IO U.S.C. §1552 (b) MCO Pl900.l6F (MARCORSEPMAN) (c) MCO Pl070.12K w/Ch I (IRAM) (d) MCO 1610.7 (PES) Encl: (1) DD Form 149 (2) Fitness Report for the reporting period 1 Jan 11 to 31 Dec 11 (3) Administrative Remarks (Page 11) entry dtd 3 Mar 02 (4) Administrative Remarks (Page 11 ) entry dtd 10 Mar 11 (5) of 13 Feb 18 (6) Ltr of 13 Jul 18 1. Pursuant to the provisions ofreference (a), Petitioner, an enlisted Marine, filed enclosure ( I) with this Board requesting his record be corrected by removing his 2002 and 2011 assignments to the Marine Corps Body Composition Program (BCP) from his official military personnel file (OMPF). By implication, Petitioner requested removal ofthe associated Administrative Remarks (Page 11) 6105 counseling entries and an adverse fitness report for the period of I January 2011 to 31 December 2011. 2. The Board, consisting of , reviewed Petitioner's allegations oferror and injustice on 31 July 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 of the 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 Petitioner's rebuttal statement and evidence. 3. The Board, having reviewed all the facts of record 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 of the Navy with the exception of his implicit request to remove his fitness report at enclosure (2). b. On 31 January 2002, Petitioner was assigned to the BCP. On 3 March 2002, as a result of his assignment to the BCP, Petitioner received enclosure (3), an Administrative Remarks (Page 11) 6105 entry, counseling him that he was not recommended for promotion due to failure to comply with Marine Corps weight standards. Petitioner failed to indicate whether he intended to make a statement, and his Commanding Officer (CO) did not sign the entry. Reference (b) requires the Page 11 entry be signed by the CO. c. On 10 March 2011, Petitioner was again assigned to the BCP. On the same date, he received enclosure ( 4), a Page 11 6105 entry, counseling him for his assignment to the BCP. Petitioner indicated his intent to submit a statement in rebuttal but his OMPF does not contain a statement nor does enclosure (4) indicate that he failed to submit his statement within the prescribed time limit as required by references (b) and (c). d. Petitioner received an adverse fitness report, enclosure (2), due to his assignment to the BCP. Per reference (d), the Perfonnance Evaluation Review Board (PERB) provides for substantive corrections, including removal, offitness reports. e. In correspondence attached as enclosure (5), the office having cognizance over the subject matter addressed in Petitioner's application has commented, in part, that Petitioner's request to remove his 2002 assignment to the BCP should be denied but the corresponding Page 11 entry at enclosure (3) should be removed because it does not comply with the requirements ofreference (b). The AO also recommended removal ofenclosure (4) because it does not comply with the requirements ofreferences (b) and (c). Additionally, the AO states the BCNR may not yet consider enclosure (2) because Petitioner's administrative remedies, specifically review by PERB, have not been exhausted. Finally, the AO states, in part, that Petitioner's 2011 assignment to the BCP appears to confonn to the requirements of applicable regulation and not to constitute error or injustice, but the Board should obtain a medical advisory opinion to evaluate Petitioner's claim. f. The BCNR declined to seek a medical advisory opinion but allowed Petitioner to have his medical record reviewed to detennine if he had been properly medically screened before being placed on the BCP. Per the medical officer's opinion at enclosure (6), Petitioner was diagnosed in 2008 with secondary to an auto accident. Despite multiple conservative care treatment approaches, his condition deteriorated to the point where further complications -including -were incurred. His symptoms worsened to the point he was assigned to Limited Duty (LIMDU) from November 20 l 0 to November 2011. Although he was on LIMDU, due to the high operational tempo of his unit and at the behest of his chain of command, Petitioner continued to work as if he was full duty. The opinion further states Petitioner's status should have waived any requirement for BCP. The medical doctor concluded by saying, in his opinion, Petitioner's health was worsened due to his command's refusal to abide by established LIMDU policy and "any and all administrative comments and disciplinary actions regarding his failed Physical Fitness Testing should be expunged from his record." g. Petitioner contends the 2002 and 2011 assignments to the BCP were in error because he was never properly assigned to the BCP in 2002 and he was improperly screened for the BCP in 2011. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of error and injustice warranting partial corrective action. The Board concluded the Page 11 counseling dated 3 March 2002 was in error because it was not signed by the CO as required by reference (b). The Board concluded the Page 11 counseling dated 10 March 2011 was in error because it did not contain Petitioner's rebuttal statement nor a comment on the Page 11 that Petitioner failed to submit his statement within the prescribed time limit as required by references (b) and (c). The Board, relying upon the AO's recommendation for a medical opinion and the opinion provided in enclosure (5), concluded Petitioner's assignment to the BCP in March 2011 was an injustice. The Board noted Petitioner's UMDU status and the medical doctor's opinion that his command's failure to comply with the requirements of Petitioner's LIMDU status warranted the removal of the 2011 SCP assignment and "any and all administrative comments and disciplinary actions". The Board denied Petitioner's request to remove the 2002 BCP assignment. The Board concurred with the AO and noted Petitioner did not present any substantial evidence to show his 2002 assignment to the BCP was in error. The Board declined to review Petitioner's implied request to remove the adverse fitness report for 20110101 to 20111231 because Petitioner has not exhausted his administrative remedies. RECOMMENDATION In view ofthe above, the Board directs the following corrective action. Petitioner's naval record be corrected by removing the Page 11 entries dated 3 March 2002 and 10 March 2011. See enclosures (3) and (4). Petitioner's naval record be corrected by removing his March 201 1 assignment to the BCP. The Headquarters, U.S. Marine Corps Performance Evaluation Review Board (PERB) review Petitioner's adverse fitness report for the period 20110101 to 20111231 in light of the Board's removal of Petitioner's March 2011 assignment to the SCP. Any material or entries inconsistent with or relating to the Board's recommendation be corrected, removed or completely expunged from Petitioner's record, that no such entries or material be added to the record in the future. This includes but is not limited to all information systems/data base entries which reference and/or discuss the material being expunged. 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 ofthe Board's proceedings in the above entitled matter. 5. Pursuant to the delegation ofauthority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval 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 behalfof the Secretary of the Navy. Executive Director