Docket No. 10617-19 
Ref: Signature Date


From: Chainnan, Board for Correction of Naval Records 
To: Secretary of the Navy 

Subj: REVIEW OF NAVAL RECORD OF , USMCR,     XXX-XX-

Ref: (a) 10 U.S.C. § 1552 
     (b) 10 u.s.c. 628
     (c) SECNAVINST 1402.1 B, 28 March 2006 (superceded by SECNAVINST 1402.1, 29 April 2019)
     (d) SECNA VINST 5420.193, 19 November 1997

Encl: (1) DD Fonn 149 w/ enclosures
      (2) HQMC memo 1401/2 MMPR, subj: Special Selection Board Request in the case of [Petitioner], undated
      (3) BCNR memo Docket No: 7782-17, subj: Review of Naval Record ICO
          [Petitioner], 28 January 2019


1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (I) with the Board for Correction of Naval Records (Board), requesting reconsideration of the decision of the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN (M&RA)) in Docket No. 7782-17 denying Petitioner's request for a Fiscal Year 2017 (FYI 7) USMC Major Special Selection Board (SSB) due to a lack·of evidence that Petitioner demonstrated reasonable diligence in correcting his record before the FYI 7 USMC Major Promotion Selection Board (PSB). Petitioner further requests the following relief in the event that the requested SSB selects him for promotion: (1) the opportunity to return to duty in the active component; (2) the ability to buy back or reconstitute some of the leave that he was required to sell upon separation; (3) the reconstitution of his ability to sell leave in the future; (4) all of the entitlements identified within reference (c); and (5) recovery of the approximately 14 days lost in the Inactive Ready Reserve between separation and activation/mobilization.

2. The Board reviewed Petitioner's allegations of error and injustice on 9 February 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. 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 ofrecord pertaining to Petitioner's allegations of error or injustice, finds 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. On 19 June 2015, Petitioner failed a Physical Fitness Test (PFT). The PFT failure posted in the Marine Corps Training Information System and Marine On Line, and on Petitioner's master brief sheet (MBS). Petitioner asserts that he had a medical issue that invalidated the PFT, and that he tried unsuccessfully to get it removed from his record. Due to his inability to correct his record prior to the convening of the FY 17 USMC Major PSB, Petitioner submitted a letter to the President of the PSB from his then-unit's operations officer providing the surrounding the event. 

  c. Petitioner was not selected by either the FY17 and FY18 USMC Major PSBs, which convened on 22 August 2015 and 16 August 2016 respectively. Consequently, Petitioner was mandatorily separated from active duty on 1 July 2017 and appointed in the Marine Corps Reserve (USMCR). Petitioner was selected by the FY19 USMCR Major PSB, which convened on 9 January 2018. He was promoted in the USMCR with a date ofrank of 1 August 2018.
 
  d. On 7 July 2016, Petitioner requested consideration by a FY17 USMC Major SSB based upon a material error of fact which deprived him of fair and impartial consideration by the FY17 and FY18 USMC Major PSBs. Specifically, Petitioner contended that his MBS was erroneous because it reflected a failed PFT, and the erroneous information was considered by the PSBs that did not select him for promotion. 

  e. Reference (b) permits consideration of an officer by a SSB if a regularly scheduled PSB considered, but did not select the officer, and the Secretary of the Navy (SECNA V) determines the action of the board was contrary to law, involved material error of fact, administrative error, or resulted from the board not having before it material information for consideration. Paragraph (j)(2) of reference (b) permits SECNAV to prescribe by regulation the circumstances under which consideration by an SSB may be provided. Reference (c) provided that "[a] special selection board will not be convened to consider any officer who, through the exercise of reasonable diligence, might have discovered and corrected the error or omission in the official record prior to convening the promotion selection board that considered, but did not select the officer." It also provided that a request for an SSB "must detail the steps the officer took to ensure the completeness and accuracy of the official record prior to the convening of the board which considered, but failed to select, the officer." 

  f. By undated memorandum to the SECNAV, the USMC Deputy Commandant for Manpower and Reserve Affairs (DC (M&RA)) acknowledged that Petitioner's record contained a material error that was considered by the FY17 USMC Major PSB and that the error may have contributed to his failure of selection (FOS) by that board. However, the DC (M&RA) determined that Petitioner's request did not meet the requirements to convene an SSB because he failed to demonstrate by a preponderance of the evidence that he exercised reasonable diligence to correct the error before the FY17 USMC Major PSB convened. According, the DC (M&RA) recommended that Petitioner's SSB request be denied. See enclosure (2). 

  g. Pursuant to the recommendation of the DC (M&RA), the Acting ASN (M&RA) disapproved Petitioner's request for an FY17 USMC Major SSB. See enclosure (2). 

h. On 22 May 2017, after his initial request for an SSB was denied, Petitioner requested
reconsideration. Petitioner argued that he had provided adequate evidence that he exercised reasonable diligence in correcting his record. However, the Commandant of the Marine Corps (MMPR) denied the reconsideration request. 

  i. Petitioner subsequently submitted a request to the Board for an FY17 USMC Major SSB, arguing that there is adequate evidence to show he exercised reasonable diligence to correct the error that caused his FOS. On 15 August 2018, the Board found the existence of an injustice warranting partial relief. Specifically, the Board determined that the material error in Petitioner's record likely adversely affected his opportunity for selection by the FY17 promotion board and that the Petitioner exercised reasonable diligence to correct his record before the FY17 promotion board convened, and that Petitioner should therefore receive a FY17 USMC Major SSB. See enclosure (3).
 
  j. Upon review, the Board's Executive Director disagreed with the Board's conclusion, finding "no evidence of the steps he took to support his claims of reasonable diligence in correcting his record before the FY17 Promotion Selection Board." In particular, the Executive Director wrote,"[ c]orrection of his record could easily have been accomplished prior to the FY17 Major Selection Board had Petitioner simply presented his medical documentation to his [Installation Personnel Administration Center]." Based upon this finding, the Executive Director forwarded the Board's conclusion, along with her own recommendation, to the ASN (M&RA). See enclosure (3). 

  k. On 7 June 2019, the ASN (M&RA) approved the Executive Director's recommendation to deny relief on 7 June 2019. See enclosure (3). 

  l. With his reconsideration request,. Petitioner provided as new evidence two letters from individuals with personal knowledge of the circumstances of Petitioner's efforts to correct his record prior to the FY17 USMC Major PSB to support his claim that he exercised due diligence in attempting to correct his record prior to the start of the FY17 USMC Major PSB. The first letter is from the Active Maintenance Officer-in-Charge at the time of the circumstances of this case. He explains that he told Petitioner that he was unable to correct Petitioner's training data, and instructed Petitioner to speak with the Headquarters Battalion S-3 for assistance, and that once a decision has been made the Installation Personnel Administration Center (IP AC) would follow the directions given by the commanding officer. The second letter is from Petitioner's former commander at the time of the circumstances of this case, who states that Petitioner was "[w]ithout question, ... persistent and diligent in his efforts to correct his record that contained a material error of fact that likely deprived him of fair and impartial consideration by the [FY17 USMCM Major PSB]." This letter asserts that Petitioner took every possible action within his power to correct his records, but the ability to correct them was outside of his control due to procedural requirements. This former commander states that his own staff created an administrative delay in correcting Petitioner's record due to their unfamiliarity with the process. Both of these letters asserted that IPAC would not process an individual's request to modify their
scores in the absence of the Commander's endorsement, and the commander's letter established that that endorsement was delayed through no fault of the Petitioner.  

  m. In addition to providing this new evidence, Petitioner also provided a detailed, day-by­
day timeline of his efforts to correct his record in time for the FY17 USMC Major PSB. He also suggested that the ASN (M&RA)'s decision in Docket No. 7782-17 to deny relief contrary to the Board's recommendation may have violated the Administrative Procedure Act (APA). 

CONCLUSION: 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. 

Having already determined in Docket No. 7782-17 the existence of a material error of fact in Petitioner's record that likely adversely affected his opportunity for selection by the FY17 USMC Major PSB, the Board docs not revisit that analysis here. Rather, this analysis focuses upon the evidence of Petitioner's diligence in attempting to correct his record prior to the FY17 USMC Major PSB. In this regard, the Board determined that Petitioner provided sufficient evidence of his reasonable diligence in attempting to correct his record in time for the PSB. Specifically, the new evidence provided clearly established that Petitioner did everything within his power to correct his record in time, but that he was unable to do so because of procedural requirements beyond his control. The evidence provided by Petitioner puts into context the reason that the commanding officer's endorsement of the request to remove Petitioner's PFT failure from this record was not signed until 6 July 2016, after the FY17 USMC Major PSB convened. Accordingly, the Board determined that Petitioner provided sufficient evidence to support his assertion that he was reasonably diligent in his efforts to correct his record. 

All of the Petitioner's other requested relief is contingent upon the FY17 USMC Major SSB selecting him for promotion. The Board was not willing to grant these requests absent the SSB results. In this regard, the Board was not convinced that Petitioner's selection by the FYI 9 USM CR Major PSB board was sufficient evidence that he would necessarily have been selected by the FY17 USMC Major PSB if the error had not been in his record. Although the Board determined the material error in Petitioner's record may have negatively impacted his opportunity for promotion by the FY17 USMC Major PSB, the Board had insufficient evidence to conclude that it was the sole reason for his failure of selection. Petitioner's selection by the FY17 USMC Major SSB would constitute new material upon which Petitioner may request reconsideration of this decision. 

The Board also considered and rejected Petitioner's contention that the ASN (M&RA)'s decision in Docket No. 7782-17 violated the APA. In this regard, the Board notes that its decisions are only recommendations to the SECNAV (or his delegate). Paragraph 6e(2)(c) of enclosure (I) to reference (d) reserves to the SECNAV approval authority for "[s]uch other petitions as, in the determination of the ... Executive Director, warrant Secretarial review." Not agreeing with the Board's recommendation in Docket No. 7782-17, the Executive Director determined that it warranted secretarial review, and appropriately forwarded the petition to the ASN (M&RA), who was delegated authority to take final action on such petitions forwarded for review in paragraph 3b ofreference (d). Accordingly, the Board found that the decision in Docket No. 7782-17 complied with reference ( d), and therefore did not violate the APA. 

RECOMMENDATION: 

In view of the above, the Board recommends that the following corrective action be taken on Petitioner's naval record: 

That a FY17 USMC Major SSB be convened to consider Petitioner for promotion, and if selected and promoted, Petitioner receive the corresponding date of rank, effective date, and lineal precedence;
 
That no further relief be granted at this time. 

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 titled matter.

5.  The foregoing action of the Board is submitted for your review and action.


03/1/2021
Executive Director

ACTING ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS DECISION: 

Board Recommendation Approved (Grant Relief)

06/08/2021
Acting Assistant Secretary of the Navy
(Manpower and Reserve Affairs)