Docket No: 10681-19 Ref: Signature Date Dear : This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. On 18 December 2019, a three-member panel of the Board for Correction of Naval Records (the Board), sitting in executive session, considered your allegations of error and injustice pursuant to the order from the United States Court of Federal Claims (“Court”). The names and votes of the members of the panel will be furnished upon request. Your allegations were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board, together with all material submitted in support thereof, your Marine Corps record, and applicable statutes, regulations, and policies. Additionally, the Board considered the 24 February 2017 advisory opinion and your 10 April 2017 rebuttal, as well as all other matters previously considered by the Board. After careful and conscientious consideration of the entire record, the 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. The Board denied your original request (docket number 10607-08) on 19 March 2009. On 4 April 2011, you filed a complaint with the Court, in which you contended that the purpose of awarding constructive service credit (CSC) is to “approximate equality, for rank and pay purposes, between the officer who enters active service on completion of a baccalaureate degree, and the officer who instead elects to pursue graduate education.” You argued that the Marine Corps’ application of CSC to your record under SECNAVINST 1120.9A was arbitrary, capricious, and contrary to law. On 15 December 2016, your case was remanded to the Board by the Court with instructions to review your argument that CSC was not properly awarded to you. Upon remand, the Board considered your contentions (docket number 11194-16), and on 28 April 2017, the Board again denied your request. In December 2017, you filed a Supplemental Complaint with the Court and, on 25 September 2019, the Court heard oral argument on the four counts that you had pending before it. In the four counts before the Court, you articulated overlapping theories as to why the Board’s denial of your request to backdate your date of rank was legally invalid. The four counts before the Court were as follows: Count I alleged that by not applying CSC to your record when you were first commissioned, the Marine Corps violated Title 10, United States Code, Section 741. Count II alleged that the Marine Corps’ application of CSC under standards different than those employed by the other Services violates the statutes that require CSC to be applied at appointment, and the regulation that requires CSC to be administered uniformly among all of the Services. Count IV alleged that the Marine Corps’ failure to place you in the same lineal position, seniority in permanent grade, and eligibility for promotion as your running mate was arbitrary, capricious, an abuse of discretion, and an error of law in violation of the Administrative Procedure Act (APA). On 13 November 2019, the Court dismissed Counts I and II of your Amended Complaint and Count IV of your Supplemental Complaint for failing to state a claim upon which the Court may grant relief. In the alternative as to these same Counts, the Court determined that the Board’s decision was “neither arbitrary and capricious nor inconsistent with the law.” Count III of your Amended Complaint alleged that the Marine Corps’ application of CSC upon designation as a judge advocate, and not upon appointment as an officer, is arbitrary and capricious because it has “no basis,” considers “no relevant factors,” and “essentially flips a coin to determine when CSC should be applied.” The Court determined that this Count stated a claim upon which it may grant relief, but stayed further proceedings and remanded it to the Board for consideration in the first instance of whether SECNAVINST 1120.9A’s application of CSC at designation is an arbitrary and capricious exercise of the Secretary of the Navy’s (SECNAV) discretion. A review of your record shows that you first entered the Marine Corps on 13 March 2001 through the Platoon Leaders Course (Law). After completing Officer Candidate School on 13 October 2001, you were commissioned as a second lieutenant in the United States Marine Corps Reserve, with a military occupational specialty (MOS) designator of 4401 (Student Judge Advocate). After earning your Juris Doctorate on 25 May 2002, you were admitted to the practice of law in Illinois on 14 March 2003. You reported to The Basic School for training on 12 June 2003, and graduated on 12 December 2003. During that time, based on your time in grade as a second lieutenant, you were promoted to first lieutenant on 13 October 2003. In January 2004, you reported to the to attend the Basic Lawyer Course (BLC). On 25 February 2004, while a student in the BLC, you were offered CSC, which would advance you on the lineal list in the permanent grade of first lieutenant with a date of rank of 13 October 2001, and adjust your initial commissioning date to 13 October 1999. CSC was not applied, however, until your designation as a Marine Corps judge advocate following graduation from . On 5 March 2004, upon your graduation from , you were designated as a judge advocate and awarded the 4402 MOS. On 19 March 2005, CSC was entered in the Manpower Management System and applied to your record effective 5 March 2005. Accordingly, your commissioning date was changed from 13 October 2001 to 13 October 1999, your first lieutenant date of rank was changed from 13 October 2003 to 13 October 2001, and your lineal control number (LCN) was changed from . On 9 February 2004, prior to your graduation from the BLC and designation as a judge advocate, the SECNAV convened a selection board to recommend eligible first lieutenants for promotion to captain during fiscal year (FY) 2005. You were not eligible for consideration by the promotion board because your first lieutenant date of rank prior to the application of CSC (13 October 2003) was below the zone of consideration. The date of rank of the junior officer in-zone for the FY2005 promotion board was 24 March 2003. In February 2005, you were eligible and in-zone for consideration for selection by the FY2006 Marine Corps Captain Promotion Board. On 11 May 2005, the SECNAV announced your selection for promotion to captain. Your adjusted LCN resulted in you being the second of 941 officers promoted to captain from the FY2006 Captain Promotion List, with a promotion date of 1 August 2005. You were later selected for promotion to major and lieutenant colonel, with a promotion dates of 1 September 2011 and 1 November 2017, respectively. In accordance with the Court’s 13 November 2019 order, the Board carefully considered the claim you articulated in Count III of your Amended Complaint that SECNAVISNT 1120.9A’s application of CSC at designation is an arbitrary and capricious exercise of SECNAV’s discretion. Specifically, you argue that because Title 10, United States Code, Section 12207(b)(1) provides that “a person who is receiving an original appointment as a reserve commissioned officer . . . or a designation in, or an assignment to, an officer category in which advanced education or training is required and who has advanced education or training, shall be credited,” CSC should have been applied at the time of your initial appointment rather than the date of your designation as a judge advocate. The Board found that under Section 12207(b)(l), CSC, when awarded, is credited back to an officer’s appointment date, the point at which CSC can be credited—upon appointment, designation, or assignment to an officer category requiring advanced education—is left to the individual Service Secretary. SECNAVINST 1120.9A, Section 8(c)(3) provides that “[a]n individual who was initially appointed as a Marine Corps Reserve officer in the . . . . . . shall be credited upon designation as a judge advocate with . . . constructive service credit.” (Emphasis added). Furthermore, the Board found that completion of the BLC and designation as a 4402 is required to practice law as a Marine judge advocate. Moreover, the Board noted that, if an officer does not pass the BLC, and is not certified to practice law as a Marine judge advocate, then they do not receive the CSC otherwise awarded as a result of their time in law school. Additionally, the Board noted that Marine officers, unlike their Navy, Army, and Air Force counterparts, are not members of a restricted staff corps but are, instead, line officers who typically are re-designated to another MOS and continue to serve should they not pass the BLC and become certified as competent by the Judge Advocate General of the Navy to practice in the Marine Corps. In contrast, officers of those Services who fail to become certified are typically separated and not re-designated. Therefore, the Board concluded that the application of CSC at the time of your graduation from NJS (i.e., upon your designation as a judge advocate and receipt of the 4402 MOS designation) was the correct time to apply CSC per the above reference, and that the basis for the SECNAV’s application of CSC to Marine judge advocates is to ensure that they have been certified to practice law in the Marine Corps before being given credit for their time in law school. Because prospective Marine judge advocates are typically re-designated in another MOS, rather than separated as in the Navy or other Services, the Board determined that the SECNAV’s discretionary determination to apply CSC differently to Marine judge advocates is warranted. Accordingly, the Board found no error or injustice warranting relief in your case. It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously 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 injustice.