From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) BCNR ltr TAL Docket No: 10445-15 of 18 Oct 16 (c) MCO P5800.16 (LEGADMINMAN) Encl: (1) DD Form 149 w/attachments 1. Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosure (1) with this Board, requesting that his record be corrected by adjusting his date of rank (DOR) in the grade of lance corporal, and his DOR in the grade of corporal and sergeant be reviewed for accuracy, that he be returned all pay lost due to his reduction in grade, as well as any pay resulting from any correction of DOR for corporal and sergeant. Petitioner also requested remedial consideration for promotion to staff sergeant based on any correction made to his sergeant DOR and correction of his date of eligibility for the Selected Marine Corps Reserve (SMCR) Medal. 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 1 October 2019 and, pursuant to its regulations, determined that 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. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Petitioner enlisted in the Marine Corps Reserve and reported for recruit training on 24 February 2006. On 1 November 2006, he was promoted to lance corporal. On 30 January 2007, Petitioner received nonjudicial punishment (NJP) for violation of Article 134 of the Uniform Code of Military Justice for adultery, and he was awarded a reduction in grade from E-3 to E-2, restriction, and forfeiture of pay. The forfeiture of pay was suspended for six months. c. Petitioner was promoted to lance corporal/E-3 again on 1 November 2007. During the period from 12 July 2008 through 15 September 2009, Petitioner received four Administrative Remarks (Page 11) promotion restriction counseling entries due to failing a physical fitness test, assignment to the Body Composition Program, failure to maintain Marine Corps weight standards, and physical fitness shortcomings. Although the available record does not reflect his DOR to corporal, Petitioner was promoted to the grade of sergeant on 1 April 2012. On 2 November 2015, Petitioner was transferred from the SMCR to the Individual Ready Reserve, and he was discharged from the Marine Corps Reserve on 13 March 2017. d. On 18 October 2016, a panel of this Board recommended that Petitioner’s naval record be corrected by removing his 30 January 2007 unit punishment book (UPB) entry and NJP, and that any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and that no such entries or material be added to the record in the future. Reference (b). The Board relied on a favorable advisory opinion from Headquarters, Marine Corps (MIQ), and determined that Petitioner’s commanding officer (CO) intended to set aside his NJP on 11 January 2015, and that the set-aside should have been executed, but was not. Petitioner’s CO addressed the request to set aside the NJP to the Commander, Navy Personnel Command (PERS 00J), via the CO, Marine Air Control Group 48, and Commanding General, 4th Marine Aircraft Wing. e. Per reference (b), when an executed or unexecuted punishment is set aside, all rights, privileges and property affected may be restored. The power to set aside an executed punishment or to mitigate an executed or unexecuted reduction in grade to a forfeiture of pay should be exercised within four months after the date of execution. f. Petitioner contends that a panel of this Board found the existence of an error warranting corrective action ( and that as a result of the relief granted, derogatory paperwork relevant to his NJP was removed from his OMPF. However, his DOR in the grade of lance corporal/E-3, retroactive pay and allowances, and awards lost due to the NJP were not restored prior to his separation from the Marine Corps. That is, all rights, privileges and property affected by the punishment were not restored. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s requests warrant partial relief. In this regard, the Board noted that Petitioner’s 30 January 2007 NJP was set aside by a panel of this Board. However, it does not appear that all rights, privileges, and property affected by the NJP were restored prior to his separation from the Marine Corps. The Board determined that Petitioner’s DOR in the grade of lance corporal/E-3 was not restored to 1 November 2006, which may have impacted the date of his promotions to corporal/E-4 and sergeant/E-5, and all associated pay and allowances. The Board determined that, if Petitioner obtained the required cutting score for promotion to corporal prior to July 2008, based on his 1 November 2006 lance corporal DOR, his record shall be corrected to reflect the DOR to corporal/E-4 that he would have received had he not been reduced in paygrade E-3 to E-2. However, the Board noted that, during the period from July 2008 through September 2009, Petitioner was in a promotion-restriction status. Therefore, if Petitioner did not obtain the required cutting score for promotion to corporal prior to July 2008, his DOR in the grade of corporal will not be effected until he obtained the required cutting score after September 2009. The Board determined that Petitioner’s record shall be audited further to determine if he would have been promoted to sergeant/E-5 prior to 1 April 2012, based on his 1 November 2006 DOR in the grade of lance corporal, and any adjustment to his DOR in the grade of corporal. The Board concluded that Petitioner’s record shall also be audited to determine if he is due any retroactive pay and allowances associated with his adjusted DOR(s), and to determine if any other rights, privileges, and property affected by the NJP were not restored, to include any medals he may have otherwise been entitled to. The Board was not willing to grant the convening of an E-6 enlisted remedial selection board. In this regard, the Board did not have sufficient information to determine if an enlisted remedial selection board is warranted, but urges Petitioner to resubmit his request to the Board once his DOR in the grade of sergeant is established. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by restoring his DOR in the grade of lance corporal/E-3 to 1 November 2006. Petitioner’s naval record be audited to determine if he would have obtained the cutting score for promotion to corporal/E-4 prior to July 2008, based on a 1 November 2006 DOR in the grade of lance corporal/E-3, and, if so, that his record be corrected to reflect the appropriate DOR. If not, then Petitioner’s naval record be audited to determine when he would have obtained the cutting score for promotion to corporal/E-4 after September 2009, once his promotion restriction period was over. Petitioner’s naval record be audited to determine if he would have obtained the cutting score for promotion to sergeant/E-5, based on a 1 November 2006 DOR in the grade of lance corporal/E-3 and based on the correct DOR in the grade of corporal/E-4, and, if so, that his record be corrected to reflect the appropriate DOR in the grade of sergeant/E-5. The Defense Finance and Accounting Service (DFAS) complete an audit of Petitioner’s records and make payment of any money that Petitioner may be entitled to. Petitioner’s record be audited to determine if any other rights, privileges, and property affected by the NJP were not restored, to include any medals he may have otherwise been entitled to. Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and that no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. 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) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.