Docket No. 10491-19 Ref: Signature Date This letter responds to your application for correction of your naval record under Title 10, United States Code, Section 1552. The Board for Correction of Naval Records (Board) denied your initial application on 15 August 2017 and your request for reconsideration on 27 September 2018. On 2 November 2019, the United States Court of Federal Claims (CFC) remanded your case to the Board and directed the Board to: (1) Address all issues within its authority, including any pertinent issues raised by the parties, and (2) Provide you an opportunity to file an amended application and/or any additional documents or evidence that you wish the Board to consider during the remand proceedings. The Board reconsidered your case in accordance with the court’s order and procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful consideration of the entire record, the Board found the evidence did not establish probable material error or injustice. Consequently, your application has been denied. A three-member panel, sitting in executive session, considered your application on 23 April 2020. The names and votes of the panel members will be provided upon request. The Board reviewed your allegations of error and injustice under applicable regulations and procedures. It considered your application, including all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. The Board also considered the enclosed 31 March 2020 advisory opinion (AO) furnished by Headquarters Marine Corps, Military Personnel Law Branch, as well as your undated response to the AO received via email on 17 April 2020. Background On 13 April 1999, you enlisted in the U.S. Marine Corps Reserve (USMCR) for eight years, and on 12 May 2006, you extended your enlistment for 23 months to affiliate with the Active Reserve (AR) Program (which is discussed in further detail below). On 25 November 2008, you reenlisted in the USMCR for three years, thereby receiving an AR enlistment bonus. On 10 November 2011, you reenlisted in the USMCR for 48 months, which included a one-year extension to accept active-duty orders. In doing so, you became a “Career Designated Marine,” a Marine who, as defined in MCO 1001.52J, has “successfully reenlisted for a second tour in the AR Program.” On 17 March 2013, you were issued permanent change of station (PCS) orders from , to , to serve as a prior-service recruiter (PSR) for 36 months. Your report date was 9 June 2013, which would have resulted in a period of 29 months on station prior to your then-scheduled end of active service (EAS) date of 9 November 2015. While attending the PSR training course, you sought a stationing option closer to your family in after learning that your neighbors in were having to “short-sell” their home, which would immediately impact the anticipated sale value of your home. In the weeks following the PSR course, you reached out to assignment to a location closer to your family. You did find another PSR who agreed to swap orders with you, but your official request to swap orders and locations was denied by the cognizant authorities. You then requested an extension on your report date to facilitate the sale of your home and family life stability, but the request was also denied. spoken to you, communicated to On 11 June 2013, you were provided an Administrative Remarks (Page 11) entry that stated you had been assigned a reenlistment eligibility code of RE-3O because you would not reenlist/extend to comply with PCS orders. The Page 11 entry further stated that, with this code, you “would not be eligible for promotion, reenlistment, commissioning or warrant officer programs, special education programs or involuntary separation pay” unless specifically authorized by the Commandant of the Marine Corps (CMC). Citing Marine Administrative Message (MARADMIN) 552/12, coordinated your release date from the AR Program to “reflect 30 June 2013.” On 30 June 2013, you were transferred from your active status to the Individual Ready Reserve (IRR) and issued a Certificate of Release or Discharge from Active Duty (DD Form 214). Your DD Form 214 indicated you were “transferred to the FMCR” but was later corrected on 11 July 2013 by a Correction to DD Form 214 (DD Form 215) to reflect you were “transferred to the IRR.” You were, therefore, not discharged from service entirely, but simply returned from ordered activated status to your non-pay Reserve status, subject to future mobilization as required by the needs of the Marine Corps. Just under three months later, on 23 September 2013, you were mobilized from the IRR to active duty and stationed in . On 13 December 2013, you were preliminarily approved by the Secretary of the Navy (SECNAV) for appointment to warrant officer, with an appointment date of 1 February 2014 (subject to final confirmation of eligibility). However, on 14 January 2014, you were notified that your promotion was delayed due to your previous assignment of a RE-3O reenlistment code. On 15 October 2015, in response to your letter requesting appointment to warrant officer, the Commanding General, Marine Corps Recruiting Command, recommended you submit a request to the CMC, routed via the chain of command, to remove the RE-3O reenlistment code. On 30 June 2016, Commander, Marine Corps Systems Command, notified you that he was recommending your name be retained on the FY14 Warrant Officer Selection List and the RE­3O reenlistment code be removed from your record. Additionally, you were advised of the opportunity to submit a written statement to the SECNAV via your chain of command. On the same date, you made a request to the SECNAV to remove the RE-3O reenlistment code and remove the delay of appointment to warrant officer. On 24 September 2016, you completed your mobilization orders and were provided a DD Form 214. On 28 September 2016, you reenlisted in the USMCR for two years, which included a one-year extension to “correct fitness report date gaps and submit for reenlistment consideration.” On 13 December 2016, the Deputy Commandant (Manpower & Reserve Affairs) (DC (M&RA)) responded, informing you that “before action can be taken on subject request, you must first petition the Board for Correction of Naval Records to request removal of your reentry code of RE-3O.” The DC (M&RA) further stated the Board would “examine your record and any evidence submitted and then forward its recommendation to the SECNAV.” On 18 January 2017, you submitted your request to the Board to remove the assigned RE-3O reentry code and grant your appointment to warrant officer. Your case, docket number NR20170000419, was considered by the Board and denied. On 3 November 2017, you requested the Board reconsider its earlier denial. This second appeal was denied on 27 September 2018. On 20 June 2019, you filed a complaint in the CFC. On 2 November 2019, the Government’s unopposed motion for remand was granted, and the case was remanded to the Board. On 21 January 2020, the Board extended you the opportunity to submit additional documents or memoranda regarding your complaint and alleged errors or injustices, and your counsel confirmed that you did not have new or additional information to submit. Relief Requested Dating back to your original case, NR20170000419, and including NR20170009211 and your complaint filed with the CFC, you requested the following relief: (1)Removal of RE-3O and corresponding documents. (2) Change separation date to reflect end of reenlistment contract, 9 November 2015. (3) Immediate appointment to warrant officer. (4) Any and all other remedies deemed appropriate by the Board to correct an injustice in the record. (5) Payment of all wrongfully denied pay and allowances due under the law to your original EAS date. (6) Invalidation of the Board proceedings, which failed to grant your requested relief. Board Consideration of Errors and Injustices The below discussion of your contentions draws upon the contentions made in your earlier submissions as well as the allegations from your CFC complaint. The overarching allegation is that you were wrongfully discharged and assigned an improper reenlistment code, which has prevented you from being appointed to warrant officer. Prior to discussing the specific allegations, a brief discussion of the AR Program, described in more detail in the AO, is helpful. The purpose of the Marine Corps AR Program, as described in MCO 1001.52J, was to “provide a cadre of well-trained and experienced full-time [Reserve Component] Marines in order to facilitate the integration of the Total Forces and assist the Active Component (AC) with their total force integration roles andresponsibilities.” The AR Program performs the following functions: “(1) organizing, preparing and administering policies and regulations affecting the USMCR; (2) training and instructing the USMCR; (3) recruiting and retention for the USMCR; (4) administration of the USMCR personnel.” As such, by design, the AR Program was, and remains today, a separate and distinct entity within the Marine Corps Total Forces. Many policies, procedures, and regulations apply differently and/or solely to Marines in the AR Program. Additionally, MCO 1001.52J states that “AR Marines must strive to become the expert on RC issues and advise other Marines unfamiliar with the AR Program on current policies and responsibilities.” Lastly, MCO 1001.52J, when discussing retention in the AR Program which is managed byHQMC (RAM), states “While RC membership is required for accession/retention in the AR Program, the two are not synonymous. Contractual time in the reserve component does not guarantee continued service in the AR Program.” The Board noted you were a Career Designated Marine in the AR Program, with a primary military occupational specialty (PMOS) of “0111, Administrative Specialist,” and selected to warrant officer. The Board further noted the repeated praise recorded by your reporting seniors and reviewing officers in your fitness reports and viewed the below discussion of your contentions through this lens. Violation of Due Process You allege your separation prior to your EAS and end of current contract (ECC) date of 9 November 2015, without proper notice of separation and an opportunity for a hearing, constituted a violation of due process. You contend the “cancellation of orders and separation to the FMCR was an unconscionable circumvention of long-standing, well-established Constitutional rights and government regulations.” This denial of due process “resulted in the extreme injustice of loss of almost two years-worth of gainful employment and pay at the E-6 paygrade without just compensation.” Specifically, you contend employment with the government creates a property interest, and public employers must provide their employees with due process protections before depriving the employees of a property interest. You further allege the Marine Corps, which outlines its own policies in the Marine Corps Separations Manual (MARCORSEPMAN), violated your due process rights when it terminated your “interest in the remainder” of your employment contract without providing notice and a meaningful opportunity to be heard. At the outset, the record must be corrected that you were not “separated”from the Marine Corps such that you were terminated from employment. Per the MARCORSEPMAN, Reservists in the AR Program are issued a DD Form 214 when released from a period of active duty service. These DD Form 214 termination of active duty documents are not separation documents that would fall under the purview of the MARCORSEPMAN chapter regarding total separation (or firing) from service, but instead note the completion of required active service. Additionally, the Board noted that in your contention, you incorrectly stated “separation to the FMCR” because the DD Form 215 issued on 11 July 2013 corrected your DD Form 214 to read “transferred to the IRR.” Therefore, you were not separated or terminated from the service, but transferred to the IRR, which is a non-drilling (and non-pay) component of Service members held in reserve in event they are required for future mobilizations or operations. Accordingly, your “transfer to the IRR” was not separation, discharge, or a breach of contract because your reenlistment contract was for four years of service in the USMCR, not a contract to remain on active duty or activated status for four years. With respect to the allegation that your denial of due process resulted in the “loss of almost two years-worth of gainful employment,” the Board noted you were released to the IRR on 30 June 2013, mobilized from the IRR to active duty on 23 September 2013 and remained on active duty orders until 24 September 2016, when your mobilization orders ended and you were transferred back to theIRR. TheBoard concluded you did not lose “almost two years-worth of gainful employment.” The Board found the evidence of record did not support a finding of material error or injustice. The Board considered your reliance on the MARCORSEPMAN’s policy for separation, to include notice and an opportunity to be heard, but—in addition to noting that your cited separation policies did not apply, as you were not being completely terminated from service— noted you were a Career Designated Marine in the AR Program. Relying upon the AO’s discussion of the AR Program, the Board concurred that MARADMIN 552/12 applied in your case. Specifically, the Board noted the language from MARADMIN 552/12, which provided that “Career Designated Marines who refuse to reenlist or extend in order to execute PCSO will be released from the AR program at the effective date of the orders, or EAS, whichever is earlier, with an RE-3O reenlistment code.” The Board noted that you declined to execute orders, and, as stated in the AO, “By declining the orders, the Applicant in effect, declined to take the necessary steps to execute the same, which included, among other things, reenlisting or extending the time on his contract,”became subject to the MARADMIN’s requirement to “be released from the AR program.” The Board further noted the effective date ofyour orders to which was earlier than your EAS. Your transfer to the IRR on 30 June 2013 was proper under the governing requirements of MARADMIN 552/12, which applied to you as a Career Designated Marine in the AR Program. Separation improper under MARCORSEPMAN 1005 You allege separation under the authority of MARCORSEPMAN 1005 was improper because your enlistment contact was not concluded. Specifically, you contend that MARCORSEPMAN 1005 merely allows a commander to separate a Marine from active-duty service upon EAS or ECC and, since you still had time remaining on your current employment contract, use of MARCORSEPMAN 1005 as an authority for separation was “grossly inappropriate, erroneous, and resulted in severe injustice.” Because the Board determined that your EAS was properly adjusted to 30 June 2013 in accordance with the governing MARADMIN 552/12, the Board concluded that your “transfer to the IRR” on 30 June 2013 was not in error or unjust. Again, theBoard noted that, due to the adjustment of your EAS in accordance with MARADMIN 552/12, you had completed your active duty and, as a Reservist, were being released from your period of activation or active duty, and transferred to the IRR—instead of discharged from the service, as is reflected by the assigned separation code of MBK4 and authorized by MARCORSEPMAN 1005. MARADMIN 552/12 You also allege that MARADMIN 552/12 was not in existence at the time you reenlisted, and therefore cannot supersede your contractual agreement. You further contend that it conflicts with the clear intent of MCO P1300.8R and is contrary to regulation and processes set forth by the MARCORSEPMAN. Relying upon the AO, the Board noted that Marines are obligated by the Uniform Code of Military Justice to follow lawful orders, regardless of whether they existed at the time of enlistment. Additionally, MCO 1001.52J discusses the need for adjustments to properly shape the AR enlisted inventory and states the adjustments will be made via a MARADMIN. MARADMIN 552/12, which promulgated the AR Program Enlisted Career Force Controls policies and provided “commanders, senior enlisted leaders, career planners, and individual Marines information regarding the origin, requirement and program elements of the AR ECFC,” was a lawful order at the time you refused your PCS orders to . Your command was obliged to follow MARADMIN 552/12. Relying upon the AO, the Board determined you misinterpreted how MCO P1300.8R applies to Marines within the AR Program. MCO 1001.52J, the order governing the AR Program, explicitly provides that MCO P1300.8R “will be used for general assignment guidance and HQMC (RAM) will make assignment for career force personnel” thus indicating that alternative sources may impact decisions or processing for AR Marines (emphasis added). The Board concurred with the AO’s determination that your command was not authorized to utilize MCO P1300.8R to disobey the mandate of MARADMIN 552/12. Breach of an enlistment contract You allege your enlistment contract was improperly amended by changing your EAS from 9 November 2015 to your release date of 30 June 2013. The Board noted you reenlisted in the USMCR for four years on 10 November 2011, making your EAS and ECC, at the time, 9 November 2015. The Board considered your contention that the Marine Corps attempted to modify your contract by issuing new orders, and when you refused to sign the new orders/modification to the contract, the Marine Corps improperly proceeded to separate you from active duty, without complying with regulations regarding separation, and breached the employment contract. The Board determined that it was not an error or injustice for the Marine Corps to adjust your EAS to 30 June 2013 in accordance with the governing MARADMIN 552/12 and decline to allow you to remain on active duty and continue serving under your then-existing AR active mobilization orders. This adjustment to your EAS was not a modification to your enlistment contract because you simply contracted to serve in the USMCR for four years, not at a specific duty station, and not specifically on active duty in the AR Program. Further, the Board noted that you were transferred to the IRR on 30 June 2013, not separated from the Marine Corps, and as part of the IRR, you continued to serve under your reenlistment contract of 10 November 2011. Failure to Notify of Separation You allege that you were not counseled regarding your immediate separation from the Marine Corps, and that the Page 11 entry you received did not notify you that your contract would be modified or that you would be released prior to the end of your enlistment period. Further, you contend that, by omitting a paragraph from the Page 11 entry required by MCO 1300.8R, you were signing the Page 11 entry with the understanding that you were requesting retention at the present duty station until you were able to get your personal finances in order to PCS at a later date. You contend that you assumed you would have the remaining two years in order to overcome your financial hardship. Relying upon the AO, the Board determined that, to the extent the Page 11 did not explicitly state you would be shortly released from the AR Program, MARADMIN 552/12 does not require a Page 11 entry nor does it provide specific guidance or requirements on the language used in any such notice. The Board also found that, based on the 10 June 2013 email from to , the record reflects you were on notice of the “outcome” of your decision and that you had been counseled to “use sound judgment” in your decision making but “unfortunately he came to this conclusion.” Therefore, the Board determined you had not met the burden of proof to overcome the presumption of regularity and concurred with the AO that there was insufficient evidence to support your contention that an injustice exists that warrants you being allowed to remain on your current orders without EAS modification. The Board concurred with the AO’s statement that the “record reflects that the Applicant’s appeal is disingenuous.” The Board noted that the email you provided in rebuttal to this statement from the AO was dated 29 May 2013, which preceded the 10 June 2013 email from and concluded the May email did not rebut the conclusion that had informed you that you would be released from the AR Program. Further, the Board noted your MOS and further determined it was disingenuous for you to contend that you did not understand you would be immediately relieved from your active status with the Marine Corps. The Board noted that, as a Career Designated Marine in the AR Program, and especially noting your MOS and your rank, you were not only required to be aware of MARADMIN 552/12 and its ramifications on refusing orders, but you were also required to have knowledge in order to properly advise subordinates in the AR Program. Further, that you were cognizant that you were bound by your orders and would face consequences upon their refusal is clear from your attempts to both swap orders with another individual, as well as to extend your enlistment at your then-duty station. It is noted that the initial cause for your refusal of orders was due to the short-sale of your neighbor’s home, which you estimated would negatively affect the value and sale of your own home, and the difficulty involved in coordinating visits with your family if you changed station before a sale was finalized. Although the Board sympathized with your concerns, it noted that such concerns are commonplace among military members in view of the transient nature of military life, and a recognized potential sacrifice necessary for the Service to maintain its operational readiness and administration. Accordingly, the Board did not find it an error or injustice to annotate your refusal to execute orders, a critical component of operational readiness for any Service, in accordance with the MARADMIN. Violation of MCO P1300.8R You allege that separation prior to the original EAS/ECC upon refusal of PCS orders was contrary to the clear intent of paragraph 1102.1 of MCO P1300.8R. You specifically contend that, “in signing, the Marine requests retention at the present duty station until the expiration of current enlistment, because it is the Marine’s intention to not reenlist.” You further contend that it was the “policy of the military” and your belief, that you would have remained at the current duty station to finish your 48-month enlistment contract. Additionally, since the MCO P1300.8R and MARADMIN 552/12 appear to be at odds, you argue the MARADMIN 552/12 cannot control. The sections above detail the Board’s determinations regarding requirements to notify and counsel you regarding your transfer to the IRR, per the language of the MARADMIN. Further, as discussed above, the Board determined you misinterpreted how MCO P1300.8R applies to Marines within the AR Program. As stated previously, MCO 1001.52J, the order governing the AR Program, explicitly provides that MCO P1300.8R “will be used for general assignment guidance” thus indicating that alternative sources may impact decisions or processing for AR Marines (emphasis added). The Board concurred with the AO’s determination that your command was not authorized to utilize MCO P1300.8R to disobey the mandate of MARADMIN 552/12. Additionally, with respect to the discussion of the RE-3O reenlistment code, even if MCO P1300.8R applied to the present matter, you still would have been issued a RE-3O reenlistment code because a RE-3O reenlistment code, per the MARCORSEPMAN, is assigned when one refuses to extend or reenlist to obtain the obligated service necessary to carry out PCS. Accordingly, the Board determined your transfer to the IRR was not contrary to the clear intent of MCO P1300.8R. Orders were invalid for failure to execute condition precedent You contend the orders issued to you were invalid because the Marine Corps web orders state they are “contingent upon SNM obtaining a minimum of 36 months OBLSVC in the Marine Corps prior to detaching .” You further allege that “it logicallyfollows that when the condition precedent to the orders being valid did not occur then the orders were null and void and could not be served as the basis for a refusal of orders to PCS that would later serve as the basis for an RE-3O.” The Board noted MARADMIN 552/12 is the governing authority in the situation where a Career Designated Marine in the AR Program refuses to reenlist or extend in order to execute PCS orders. Applying MARADMIN 552/12, the Marine Corps correctly assigned a RE-3O reenlistment code. Additionally, the Board determined it was not logical to interpret the phrase in that manner when the phrase is read in the context of the entire paragraph. When reading the orders in their entirety, the Board noted the direction immediately following your highlighted phrase: “CMD DIR NOT TO DETACH SNM PRIOR TO SNM OBTAINING REQR OBLSVC PER REFS A AND B, or “Command directed not to detach Subject Named Marine prior to Subject Named Marine obtaining required obligated service per references a and b” Logically, by not obtaining the minimum 36 months, the Marine does not comply with the orders but the non-compliance does not render the orders “null and void.” Per MCO 1001.52J, orders are issued pursuant to the needs of the AR program, and are subject to modification based on those needs and updates in policies or instructions. Specifically, “the needs of the AR Program and management of grade-shaping requirements may necessitate the change of station/assignment outside the standard tour.” Board failed to consider key documents In your reconsideration request of 2 November 2017, you allege the Board previously failed to consider key documents submitted in your initial request of 17 January 2017, specifically letters from your command and the DC (M&RA) regarding removal of the RE-3O. In its current review, the Board has fully considered these documents, as well as the entirety of your submissions and the available official military personnel file (OMPF). However, the Board determined there was insufficient evidence to support your interpretation of the noted documents or to show that the Page 11 entry assigning the RE-3O has been removed from your record by an independent source or direction. Board Decision For the foregoing reasons, the Board determined you have not provided substantial evidence demonstrating the existence of probable material error or injustice warranting the requested relief. Specifically, for the reasons detailed above, the Board finds that you were not discharged from the service, and thus your contended procedural requirements of the MARCORSEPMAN did not apply. Your enlistment was an agreement to participate in the USMCR, and your transfer to a subcomponent of same (the IRR) was within the purview of your enlistment contract. Finally, you elected to participate in the AR Program, subject to its additional requirements for Reservists, and your election to refuse orders subjected you to the consequences detailed in the MARADMIN for same: an accelerated EAS and RE-3O reenlistment code noting your refusal of orders. Although not required, the Board found that the Page 11 entry and discussion with your senior enlisted member constituted appropriate notice and counseling, where none was formally required, for the results of your election to refuse PCS orders. The fact that you, as a Career Designated Marine in the AR Program, and especially as one with an Administrative Specialist PMOS, were required to “strive to become the expert on RC issues and advise other Marines unfamiliar with the AR Program on current policies and responsibilities” was relied upon by the Board regarding your objections to the administrative remarks, the information they did or did not include, the effect of an RE-3O on your future career, and your general objections regarding PCS orders. Further, the Board determined it was not error or injustice for the Marine Corps to follow the requirements of MARADMIN 552/12 and release you from the AR Program at the effective date of the orders and assign you an RE-3O reenlistment code after you refused to execute your PCS orders to . Additionally, your release from the AR Program and transfer to the IRR did not constitute a modification to your enlistment contract because you were contracted to serve as a reservist, not necessarily an activated reservist, nor was it an involuntary separation or an “unconscionable circumvention of long-standing, well-established Constitutional rights and government regulations.” The Board also concluded that your Page 11 entry, assignment of a RE-3O reenlistment code, and your transfer to the IRR were not, as you contend, contrary to MCO P1300.8R, a breach of contract, or improper, due to the additional instructions and requirements for your elected participation as a Career Designated Marine in the AR Program. Further, the Board determined that there was insufficient evidence of an error or injustice in the Page 11 counseling or the issued PCS orders, based on the emails confirming your understanding of said consequences, paperwork that was completed, and your familiarity with administrative affairs per your specialty, and concluded you had not overcome the presumption of regularity that you were informed that your refusal of orders would result in being released from the AR program at the effective date of the orders. Accordingly, the Board voted unanimously to deny your requests for removal of the RE-3O reenlistment code and corresponding documents, change of separation date to reflect 9 November 2015, immediate appointment to warrant officer, and payment of all wrongfully denied pay and allowances. In summary, the Board concluded the following with respect to your requested relief: (1) Your assignment of a RE-3O reenlistment code was warranted, per your knowing declination to execute your PCS orders and the explicit language of MARADMIN 552/12, and the corresponding documents should remain in your OMPF. (2) MARADMIN 552/12 authorized your release from the AR at the effective date of the orders rather than your original EAS of 9 November 2015. Therefore, the Board denied your request to change your “separation date to reflect 9 November 2015.” (3) The Board, having determined you were appropriately assigned a RE-3O reenlistment code and noting the Page 11 entry of 11 June 2013 which explained you were not eligible for “commission or warrant programs,” concluded you were not eligible for the warrant officer program and denied your request for immediate appointment to warrant officer. (4) Having determined your release from the AR and transfer to the IRR on 30 June 2013 were authorized, the Board determined you were not wrongfully denied pay and/or allowances and denied your request for payment. It is regretted that the circumstances of your reconsideration petition 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 you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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 injustice.