Docket No: 3533-19      
Ref: Signature date 


This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (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 will not materially add to their 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. 

A three-member panel of the Board, sitting in executive session, considered your application on 2 June 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.  The Board also considered the enclosed 6 March 2018 advisory opinion (AO) furnished by the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to you.  Although the AO was provided to you and you were afforded an opportunity to respond, you did not do so. 

The Board carefully considered your request to remove your adverse Commandant of the Marine Corps Directed (DC) fitness report for the reporting period 1 June 2014 to 18 December 2014, to remove the Board of Inquiry (BOI) material and all associated documents, and to convene a Fiscal Year (FY) 2017 USMC Major Special Selection Board. 

The Board considered your contentions that: 

(1) upon submission of your Marine Reported On (MRO) Worksheet for your Annual (AN) fitness report for the reporting period 20 December 2014 to 31 May 2015, your reviewing officer (RO) directed your reporting senior (RS) to backdate the report six months and write your contested DC fitness report.  You contend that the proper procedure is to continually issue AN fitness reports until the adjudication of the BOI ruling; 

(2) your RO used the BOI’s 25 May 2015 decision as justification for the DC report; 

(3) your fitness report was submitted 18 months late, in violation of the Performance Evaluation System (PES) manual.  Additionally, a delay in reporting requires a waiver but no waiver was requested nor granted; 

(4) due to the untimely submission of your fitness report, you failed selection by Fiscal Year (FY) 2017 and FY 2018 Major Promotion Selection Boards. 

(5) the fitness report is in violation of the United States Constitution, Article 1 Section 9 Clause 3 found in Weaver v.  Graham (1980) that “it is the effect, not the form, of the law that determines whether it is ex post facto.”  Theeffect of this fitness report will be in violation of the Constitution, because it is based on information that happened after the reporting period (ex post facto); 

(6) the fitness report is in violation of the PES manual.  As described by Chapter 4, paragraph 12 e (1), the RS must not report pending matters.  The case was still ongoing and was not concluded until 1 August 2016, [the Report of Misconduct] was later added to your official military personnel file (OMPF) on 25 July 2017.  Conduct-based adversity is reported only after the matter is fully adjudicated.  This applies even when the Marine is reassigned to a different command prior to the final adjudication of the matter; 

(7) foreign convictions are not binding within MC Order 1610.7F and do not warrant reporting until ruled domestically, and that your plea bargain was in a foreign court and does not warrant a DC report; 

(8) the Staff Judge Advocate (SJA) Report does not address all issues in your BOI rebuttal.  Specifically, you assert that the SJA: 

(a) falsely states that the BOI determined that you were the driver based on the plea bargain. 

(b) falsely and misleadingly states “[t]he Board members heard the witnesses, viewed all evidence presented, and were in the best place to determine the facts of this case” when the BOI actually determined that you were an innocent passenger, and that “it was entirely proper for the [BOI] to rely on the facts contained in the conviction of the  court to determine that [you were] the driver of the vehicle” when the BOI actually stated, “I do believe that we feel unanimous that the preponderance of evidence does tend to lead us to believe that you were a passenger in that vehicle, and you were not driving.” 

(c) misleadingly states “[t]his resolution appears incongruent considering he was convicted of causing the deaths of two people; however, the [BOI] could have properly concluded Petitioner’s otherwise meritorious service outweighed his transgression, especially in light of the exceptionally light sentence meted out by the  court” because it was not your meritorious service that led the BOI to its conclusion, it was its finding that you were not the driver, and your innocence that led to its conclusion. 

(d) alleged that you never challenged the  judicial system’s competency, although the competency was challenged when questioning  (Col USAF Ret.). 

(e) made the false statement “[f]inally, [you] never contested the underlying facts of the Italian conviction until the BOI.”  You assert that, based on your injuries, you had contested the underlying facts of the case from day one, and that it is specifically why you hired  civilian council with experience in , and that it is shown through emails as well. 

(f) failed to address the rebuttal issue raised that the BOI felt bound to find guilt in taking a plea bargain, but that they were not.  Therefore, the BOI was eventually closed based on a factually inaccurate and the misleading memorandum by the SJA, without addressing all matters in the rebuttal.  Specifically, the SJA memorandum mischaracterizes the ruling of the BOI and is not congruent with their findings.  The Commanding General, Marine Corps Installations Marine Corps Base,  referenced the SJA memo in order to determine a ruling.  You assert that, because of the factually inaccurate, misleading and incomplete memorandum by the SJA the Commanding General believed you were found to be the driver.  Stating “[you were] found to be the driver of the vehicle.” 

(9) You will not be charged under the UCMJ because you were found innocent during the Marine Corps inquiry into the matter at the BOI.  You specifically note that a plea bargain is not a chargeable offense under the UCMJ, especially when all underlying facts are not guilty, that the MILPERSMAN 1910-144 states that boards do not hold foreign convictions binding, and that the foreign court proceedings were labeled as a “terrible investigation” and a “kindergarten investigation.” 

The Board, however, substantially concurred with the AO that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting the removal of your fitness report.  First, the Board noted that there is insufficient evidence that your RO relied on the BOI’s 25 May 2015 decision in order to justify the adverse report.  In fact, as stated by your RS in the contested report, “[t]he adverse nature of this report is based on the technically correct answer to the PES Manual” because you were subject to a conviction in a civilian court of . 
Next, the AO noted that a DC report is required when a “significant commendatory or adverse action occurs that requires immediate reporting to CMC [Commandant of the Marine Corps].” The AO determined that your DC report was warranted due to your civil criminal conviction.  The Board noted that the policy does not distinguish between foreign or domestic civil court convictions, nor does it prohibit the reporting of foreign court convictions.  For these reasons, the Board concluded that your DC report was warranted. 

With regard to your contention that you should have been issued an AN report for the reporting period 20 December 2014 to 31 May 2015, but were instead issued the contested fitness report, the Board noted that this matter was adjudicated by your Third Officer Sigher (3OS), who agreed with you that the untimely submission of the report violated PES policy, and that you should have been issued fitness reports for the reporting periods 1 June 2014 to 18 December 2014 and 19 December 2014 to 31 May 2015.  Your 3OS determined, however, that the fact that the report was late did not justify omitting its submission.  Additionally, the Board concurred with the AO that, while there was an administrative lapse with regard to the timely submission of the report, the reasons for the delay were warranted given the gravity of the matters involved.  The Board concluded that the untimely submission, or the lack of a waiver authorizing late submission, does not invalidate the report or warrant its removal from your OMPF. 

The Board noted that you have a one-day gap in your fitness report continuity between the contested fitness report ending 18 December 2014, and your succeeding fitness report beginning 20 December 2014.  The Board determined that the contested report end date should have been 19 December 2014, the Board also determined that this was a scrivener’s error and not material as it made no difference to any material fact considered in your case. 

With regard to your contention that, due to the untimely submission of your fitness report, you failed selection by FY 2017 and FY 2018 Major Promotion Selection Boards, the Board noted that, on 25 August 2015, when the FY 2017 Major Promotion Selection Board convened, the last fitness report inserted into your OMPF was your AN report ending 31 May 2014, and the appearance of an apparent “date gap” likely contributed to your FY 2017 failure of selection (FOS).  The Board also recognized that, although your fitness report was in your record and available for consideration by the FY 2018 Major Promotion Selection Board, and the date gap error was therefore corrected, you were potentially at a disadvantage due to being above the promotion zone. 

The Board, however, noted that both your FY 2017 and FY 2018 FOSs were removed, and you were considered “above zone not previously considered”(AZNPC) by the FY 2019 Major Promotion Selection Board.  Officers in this status are considered by the promotion selection board to be in-zone.  The Board noted that when the FY 2019 promotion selection board convened, your performance date gap error had been corrected, and although you had the added benefit of two years to improve upon your performance record, and the benefit of an AZNPC status, you incurred a failure of selection.  You were considered by the FY 2020 promotion selection board, and again, with the benefit of three years to improve upon your performance record, and the benefit of an (erroneous) AZNPC status, you incurred a second failure of selection.  The following year, you were considered above-zone by the FY 2021 promotion selection board and failed selection. 

With regard to your contention that the fitness report is in violation of the United States Constitution, Article 1 Section 9 Clause 3 found in Weaver v.  Graham (1980) because it is based on information that happened after the reporting period, the Board noted that your RS 
specifically stated in the contested report that “[t]he adverse nature of this report is based on the technically correct answer to the PES Manual” because you were subject to a conviction in a civilian court of   .  The Board noted that your reporting officials did not introduce any 
information that occurred outside of the reporting period, and that information that occurred outside of the reporting period was first introduced when you mentioned the 26 May 2015 convening of your BOI.  The Board determined that your reporting officials then had a responsibility to determine the validity of the new information and to resolve inconsistencies and disagreements. The Board thus concluded that your contested fitness report is not based on information that happened after the reporting period, and that it is not in violation of the United States Constitution, Article 1 Section 9 Clause 3 found in Weaver v.  Graham (1980). 

With regard to your contention that your RS reported on pending matters, specifically, you assert that your case was still ongoing and was not concluded until 1 August 2016, and [the Report of Misconduct] was later added to your OMPF on 25 July 2017, and conduct-based adversity is reported only after the matter is fully adjudicated.  The Board noted that your RS specifically stated in the contested report that “[t]he adverse nature of this report is based on the technically correct answer to the PES Manual” because you were subject to a conviction in a civilian court of .  The Board concluded that the adversity of the report was based on your guilty plea, and subsequent conviction, which was fully adjudicated upon your conviction.  The Board determined that the purpose of the Report of Misconduct was not to further adjudicate your misconduct, but to report it pursuant to Marine Corps Order P5800.16A.  Likewise, the purpose of your BOI was not to further adjudicate your misconduct, but to make a recommendation as to whether you should be retained in the Marine Corps and, if separation is recommended, the recommended characterization of service. 

With regard to your contention that the SJA Report did not address all issues in your BOI rebuttal, the Board determined that this is not a material error, as those who took action, the Deputy Commandant for Manpower and Reserve Affairs and the chain of command, all had the actual Report of the BOI, to include your rebuttal matters.  Additionally, even if this was an error, you were not denied your procedural right to submit a rebuttal prior to the decisions made (and thus the actions reflected in your record). 

With regard to your contention that you were found innocent by your BOI, the Board noted that this contention was first addressed by your RO in your contested fitness report.  Specifically, your RO stated that “a BOI does not determine guilt or innocence.  A BOIdetermines if misconduct or substandard performance are substantiated or unsubstantiated.” Similarly, the Board noted that the scope of the BOI is not judicial, but to form findings and recommendations that provide a basis for separation for cause or retirement in the current grade or a lesser grade, and to present matters favorable to their case on the issues of separation and characterization of service.  The Board thus concluded that you were not found innocent by the BOI. 

With regard to your request to convene a FY 2017 SSB, the Board considered whether the action of the FY 2017 promotion selection board involved material error of fact or if the promotion selection board lacked material information.  Material information is information that, when removed from, or properly recorded in your record would have been essential to a substantially accurate, complete, and fair portrayal of your career.  The Board noted that your record was in error when you failed selection by the FY 2017 promotion selection board.  The Board, however determined that the error was not material.  In this regard, the Board noted that the error was corrected when your contested fitness report was inserted into your OMPF, and that you had your FY 2017, FY 2018, and FY 2019 failures of selection removed.  The Board noted that this gave you two additional in-zone considerations (FY 2019 and FY 2020), and although your record had been corrected, you were not selected by either board.  The Board thus concluded that your record would not be materially different before an FY 2017 SSB than it was when you failed selection by the FY 2019 and FY 2020 promotion selection boards. 


The Board echoed your 3OS comment that this is a very unfortunate incident that has impacted many lives, but there is no way to avoid the fact that you plead guilty and were convicted in a foreign court of law. 

It is regretted that the circumstances of your case 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 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. 

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