DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7985-18 Ref: Signature Date This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its 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 27 August 2019. 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, as well as applicable statutes, regulations, and policies. The Board carefully considered your request to remove derogatory material from your official military personnel file (OMPF), to have your name restored to the Fiscal Year 2017 (FY17) Unrestricted Reserve Colonel Promotion List, and to be promoted to Colonel with a 1 January 2017 date of rank. The Board considered your contention that you were not on inactive duty training, and therefore not subject to the Uniform Code of Military Justice (UCMJ), when the misconduct occurred. You also contend that there were legal errors committed by the U.S. Marine Forces Reserve staff judge advocate team and that there was personal bias against you by a staff judge advocate. The Board noted that, on 11 October 2014, you operated your vehicle, near in , while under the influence of alcohol and struck a light-pole and two garden sheds, causing damage to the objects. When police arrived, the car was unoccupied and witnesses reported that a man (you) had left the scene of the accident on foot. Your wife later arrived at the scene of the accident and told the police that you went home after the accident. The police transported you from your home to the police station, where results of a breathalyzer indicated you had a .172 percent blood alcohol content (BAC). The Board also noted that you were not in a military duty status when the misconduct occurred, but you were a general schedule (GS) employee with United States . On 9 April 2015, the incident was adjudicated in court. You were fined €6,624.39, and you paid an additional €600 in legal fees. took disciplinary action against you in your civilian employee status by issuing a formal counseling, a letter of reprimand was placed in your civilian administrative file, and you were suspended from for a week without pay due to “Conduct Unbecoming of a Federal Employee,” effective 10 August 2015. You voluntarily completed “Prime for Life Alcohol Substance Abuse Counseling” on 1 September 2015. On 6 October 2015, the fiscal year 2017 (FY17) USMCR Unrestricted Colonel Promotion Selection Board convened. You were selected with a 1 January 2017 projected promotion date. However, on 28 December 2015, you were notified by email by HQMC (JPLP) that your promotion was being withheld based on a records check that revealed potentially adverse information concerning allegations of driving under the influence. Your 17 June 2018 memorandum to the Board, and accompanying personal emails, demonstrate that you did not see or open the 28 December 2015 JPLP email and attachments until 10 January 2016. Email correspondence between you and JPLP demonstrates that you acknowledged receipt of your promotion hold by email on 12 January 2016, and acknowledged that you had ten days from the time of first opening the email, or until 20 January 2016, in which to submit a response, that you could receive additional time if requested, and that those ten days did not include the time to get endorsements from your chain of command (your and , and . You drafted a written response, signed and scanned it (and your written acknowledgment of notification of your promotion hold) on 19 January 2016, and emailed them to your Group Commander and Executive Officer for their “endorsement and further routing.” On 12 February 2016, you sent a written response to the Commanding General’s 25 January 2016 “Report of Misconduct” letter, substantially rearticulating your 19 January 2016 response. In the 25 January 2016 Report of Misconduct, it was recommended that you be retained in the Marine Corps and that your misconduct case be closed. In your 12 February 2016 letter, you again accepted full responsibility for your alcohol related incident (ARI). You also recounted the disciplinary action taken against you as a result of the ARI, and your personal corrective actions taken, and requested that the adverse material not be included in your OMPF. According to your memorandum statement to the Board, you “never saw the endorsements to [your] statement from , .” Your memo statement and timeline state that the only response you sent to the 28 December 2015 JPLP notification was your 19 January 2016 response sent to your Group Commander. You later contend in your memo that your letter “was never routed and the endorsements . . . never made it to HQMC.” However, you never contend, and the administrative record does not show, that you ever sent any response to the 28 December 2015 JPLP letter directly to JPLP. Nevertheless, the 21 February 2017 letter to you, enclosing the memorandum of decision to the Secretary of the Navy (SECNAV), has as its enclosure (4) your 10 May 2016 letter with endorsements. Based on the foregoing information, you never sent a “10 May 2016” letter to JPLP, or any letter directly to JPLP. You did, however, send a 19 January 2016 letter to for “endorsement” and “further routing.” Paragraphs 6 and 7 of the SECNAV memo describe enclosure (4) as containing your “matters” and the “endorsements” from . As stated in the SECNAV memorandum, the Commander endorsed your matters by recommending your promotion. The and Commanding General endorsements recommended your “removal from the FY17 USMCR Unrestricted Colonel Promotion List.” On 3 May 2016, the closed your misconduct case and directed that the adverse matters documenting the incident be included in your OMPF. The adverse materials were entered into your OMPF on 3 August 2016, and the FY17 promotion selection board did not have the opportunity to review your adverse materials when it convened and selected you for promotion. The recommended to SECNAV that your name be removed from the FY17 USMCR Unrestricted Colonel Promotion List. The CMC determined that your misconduct raises significant questions about your professionalism and suitability for promotion. Additionally, it was determined that you failed to maintain the standards of behavior expected of a Marine officer. The CMC advised that removing you from the FY17 Promotion List will allow the adverse information to be properly considered by a future promotion selection board. On 14 February 2017, the SECNAV removed your name from the FY17 Promotion List. You were notified that, by statute, the removal constitutes a failure of selection. You were also notified that the adverse material will be added to your OMPF in accordance with Marine Corps policy. Regarding your contention that you were not on inactive duty training at the time of your misconduct, and therefore not subject to the UCMJ, the Board noted that no punitive action under the UCMJ was taken against you. However, you committed misconduct as a federal civilian employee in a foreign country. The fact that you were not in a drilling or active duty status at the time does not insulate your misconduct from appropriate consideration by the Department of the Navy, particularly regarding suitability for promotion. Accordingly, the Board found no probable material error or injustice in its consideration in your case. Regarding your contention that there were legal errors committed by the U.S. Marine Forces Reserve staff judge advocate team, the Board noted that you acknowledged receipt of the 28 December 2015 JPLP notification by your 12 January 2016 email to JPLP, and that you forwarded your 19 January 2016 acknowledgement and written response thereto to for endorsement and further routing. In May 2016, your matters, and the and endorsements, were received by HQMC, considered by CMC, and included as enclosure (4) to the CMC memorandum for SECNAV. Regarding your contention of personal bias by a staff judge advocate, the Board noted that, pursuant to the Marine Corps Manual for Legal Administration, “when the general court-martial convening authority (GCMCA) finds that misconduct occurred, the GCMCA must . . . forward the case to the Alternate Show Cause Authority with a show cause recommendation” and a Report of Misconduct “must be generated in all case where the GCMCA finds that misconduct occurred.” The purpose of the Report of Misconduct is to provide the Alternate Show Cause Authority and the Show Cause Authority with sufficient information to make a decision on whether to process the officer for administrative separation and to provide a complete record of the misconduct and its disposition for inclusion in the officer’s OMPF. Finally, the decision to remove you from the Promotion List was made deliberately. Ultimately, the SECNAV is responsible for ensuring that officers to be appointed are mentally, physically, morally, and professionally qualified for promotion. The SECNAV determined that, due to your misconduct, you failed to maintain the standard of behavior expected of a Marine officer, and that you were no longer qualified for promotion. The Board lacks jurisdiction to disturb that determination. Accordingly, under the totality of the circumstances, the Board concluded that you failed to provide substantial evidence demonstrating the existence of a probable material error or injustice warranting your requested relief. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters. which will require that you 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 injus Sincerely, 11/29/2019