DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 2518-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO P1400.32D W/CH 1 (MARCORPROMMAN, Vol 2, ENLPROM) Encl: (1) DD Form 149 w/attachments (2) HQMC memo 1400/3 MMPR-2 (undated) 1. Pursuant to reference (a), Petitioner, a staff noncommissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting that a back date-of-rank (DOR) in the grade of gunnery sergeant (GySgt), and the convening of an enlisted remedial selection board (ERSB) to consider him for promotion to master sergeant (MSgt). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 8 January 2020 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. On 26 January 2016, the Headquarters, Marine Corps Performance Evaluation Review Board (PERB) directed Petitioner’s record be corrected by modifying the “from” date of his fitness report for the reporting period 21 December 2013 to 30 September 2014, and by modifying the occasion from “AN” [annual-Active component] to “AR” [annual-Reserve component]. c. On 27 January 2016, the Fiscal Year (FY) 2016 Active Reserve (AR) Staff Noncommissioned Officer (SNCO) Promotion Selection Board convened. Petitioner was eligible for promotion consideration, however he failed selection. Headquarters, Marine Corps was unable to confirm that the corrections directed by the PERB on 26 January 2016 were made to Petitioner’s record prior to the convening of the promotion selection board. Petitioner was selected to the grade of GySgt/E-7 the following year by the FY 2017 promotion selection board, and he was promoted with a DOR of 1 March 2017. d. Petitioner contends that he acted with due diligence to correct his record by petitioning the PERB to modify his fitness report prior to the convening of the FY 2016 promotion selection board, but that his fitness report was not modified in time to allow him to be properly viewed by the FY 2016 board. Petitioner asserts that the errors on his fitness report were the cause of his failure of selection to GySgt. e. According to enclosure (2), an advisory opinion (AO) furnished by Headquarters, Marine Corps (MMPR-2), Petitioner exercised reasonable diligence in correcting his record prior to the convening of the FY 2016 AR SNCO Promotion Selection Board. MMPR-2, therefore, recommended Petitioner’s DOR in the grade of GySgt/E-7 be adjusted to 1 March 2016, the DOR he would have received, had he been selected by the FY 2016 promotion selection board. Additionally, the AO noted that, if Petitioner’s DOR in the grade of GySgt/E-7 were adjusted to 1 March 2016, he would still be too junior for promotion consideration to MSgt in FY 2018, and that there were no allocations for promotion to MSgt in Petitioner’s intended military occupational specialty in FY 2019. If Petitioner’s DOR is backdated to 1 March 2016, he would first be eligible for promotion consideration to MSgt/E-8 by the FY 2020 promotion selection board. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. In this regard, the Board determined that Petitioner’s record was potentially in error when the FY 2016 AR SNCO Promotion Selection Board convened. The Board, however, determined that Petitioner’s assertion that the error caused his failure of selection is merely speculative. The Board, therefore, was not willing to grant Petitioner’s request for a back DOR in the grade of GySgt/E-7 because the Board could not be certain whether the promotion selection board viewed Petitioner’s erroneous fitness report, or his corrected fitness report, and even if the promotion selection board had reviewed his erroneous fitness report, the Board was not convinced that it error was material, or that it would have been the sole cause of his failure of selection. The Board determined that consideration by an enlisted remedial selection board (ERSB) is the fair way to determine Petitioner’s competitiveness for promotion amongst his FY 2016 peers. The Board noted that Petitioner was selected by the FY 2017 Promotion Selection Board, and in accordance with reference (b), he is no longer eligible for consideration by an ERSB to the grade of GySgt/E-7. The Board however, concluded that in the interest of fairness, an exception to policy shall be invoked, and MMPR-2 shall convene an FY 2016 GySgt ERSB on Petitioner’s behalf, and if he is selected, his GySgt/E-7DOR shall be adjusted to 1 March 2016. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner be considered by an FY 2016 GySgt ERSB, and if selected, his DOR and effective date in the grade of GySgt/E-7 shall be adjusted to the date he would have received had he originally been selected by the FY 2016 Board. 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. 3/3/2020