DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 5608-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary ofthe Navy Subj: REVIEW OF NAVAL RECORD OF XXX XX USMCR RET Ref: (a) Title 10 U.S.C. §1552 (b) SECNAVINST 1920.6C (c) Joint Travel Regulations (JTR) (d) DoD 7000.14-r FMR Vol. 5 Encl: (2) DD Form 149 of 13 May 19 with attached petition (2) MCTFS Grade Select Data (3) MROWS/1550505/0/ACO of 5 Apr 12 (4) CO Marines reporting endorsement 1321/2 S-1 of 17 Jul 12 (5) Naval udit ervice memo 7540 2012-0140 of 11 Jun 12 (6) CO Marines ltr 1320/2 S-1 of 12 Sep 12 (7) IG DOD document of7 Feb 2013 (8) Finance Officer, ltr 1000 of 19 Sep 13 (9) Finance Officer, , ltr 7220 RFF of27 Oct 14 (10) Commander, ltr 1920 SJA/acs of7 Aug 15 (11) CMC second endorsement 1920 JPL of25 May 16 (12) MCTFS Separation Data (13) HQMC memo 7200 RFF undated (14) Petitioner's Rebuttal to HQMC memo 7200 RFF undated (15) HQMC memo 1070 JPL of 12 Jun 20 1. Pursuant to the provisions of reference (a) ubject, hereinafter referred to as Petitioner, filed enclosure (I) with this Board requesting, in effect, that the applicable naval record be corrected to have retired grade of First Lieutenant amended to Major and debt being collected by the Treasury Department modified as explained in attached petition. 2. The Board reviewed Petitioner's allegations of error and injustice on 20 August 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 record, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Peti ioner' s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department ofthe Navy. b. On 1 May 2000, Petitioner was appointed Captain/O3, and on 1 April 2006, appointed Major/O4. See enclosure (2). c. On 5 April 2012, Petitioner was issued Marine Reserve Order Writing System (MROWS) duty 14 April 2012 to 30 September 2012 for 170 days. Petitioner's residential address located (variation in itinerary was authorized) and any additional travel/per diem cost arising from travel directed by the MPC or GFC. See enclosure (3). d. On 23 April 2012, Petitioner reported to for temoporary additional duty (TAD). Government quarters were not available and government messing available but not directed. See enclosure (4). e. On 11 June 2012, Department of the Navy, Naval Audit ervice completes memorandum for Naval Criminal Investigative Service (NCIS), the potential irregularities in travel reimbursements claimed by Petitioner. The travel orders investigated to include all travel entitlements claimed and paid were 879726, 888346, 994095, 1013087, and I 164083. These orders constituted travel beginning on 5 January 2004 and concluding on 12 May 2008. See enclosure (5). f. On 12 September 2012, Petitioner was notified of termination of TAD to , Petitioner detached and directed to report to parent command effective 17 September 2012. . See enclosure (6). g. Petitioner received the below travel payments totaling $22,242.26 from the Disbursing, for TAD travel conducted to from 23 April 2012 throught 17 September 2012. See enclosure (6). (1) Effective date of payment 23 October 2012. Disbursing Office Voucher (DOV) number (No.) 454054, partial settlement for 23 April 2012 -31 May 2012, amount $5,706.00. (2) Effective date ofpayment IO December 2012. DOV No. 459778, partial settlement for l June 2012 -30 June 2012, amount $4,560.00. (3) Effective date ofpayment 13 December 2012. DOV No. 460264, partial settlement for 1 July2012 -31 July2012,amount$4,712.00. (4) ffective date ofpayment 27 December 2012. DOV No. 461476, partial settlement for 1 Aug 2012 -31 Aug 2012, amount $4,712.00. (5) Effective date of payment 9 January 2013. DOV No. 462041 , partial settlement for 1 September 2012 -17 September 2012, amount $1,016.26. (6) Effective date ofpayment 23 January 2013. DOV No. 463234, final settlement for 1 September 2012 -17 September 2012, amount $1,536.00. h. On 7 February 2013, Inspector General, Department of Defense, Defense Criminal Investigative Service (DCIS), details initiated case on 1 ebruary 2013 due to sufficient evidence of$350,000 embezzlement scheme, allegedly involving Petitioner and another service member concerning fraudulent lease agreements. See enclosure (7). i. On 19 September 2013 the Finance Officer, submitted debt notification and collection notice to Petitioner. Letter states per the DCIS report dated 5 September 2013, Petitioner was legally residing in the area upon receipt ofTAD orders effective 5 January 2004. In addition, that all subsequent orders issued to Camp Pendleton would be considered a local resident to the TAD site and not entitled to per diem and travel allowances from 2004 through 2013. As a result, Petitioner identified as having an outstanding debt to the United States Government for $190,676.06. See enclosure (8). j. On 27 October 2014, the inance Officer, issued separation indebtedness notification. This letter indicated final settlement audit conducted with Petitioner being overpaid $137,298.35. See enclosure (9). k. On 7 August 2015, Commander, MFR submitted report ofPetitioner's misconduct to the Commandant ofthe Marine Corps (CMC), Military Personal Policy Branch (JPL). Letter stated Petitioner was subject to NCIS and DCI reimbursement claims while mobilized and assigned to Marine Corps Base, between November 2001 and September 2011. See enclosure (10). 1. On 25 May 2016, Deputy Commandant for Manpower and Reserve Affairs (DC M&RA) submitted report ofmisconduct and report ofthe Board of Inquiry (801) in case ofthe Petitioner. Background paragraph states from 2004 through 2011 , Petitioner engaged in a scheme to defraud the Government and, by doing so, wrongfully obtained more than $190,000. After reviewing the applicable law and regulations, the report of misconduct, the investigative materials, the civilian criminal indictment, the report of 801, and the chain ofcommand's recommendation, the DC M&RA recommended Petitioner be retired in the grade of first lieutenant. See enclosure (11 ). m. On 20 eptember 201 6, Assistant Secretary ofthe Navy (Manpower and Reserve Affairs) (ASN (M&RA)) approved the DC M&RA's recommendation. See enclosure (11 ). n. On 30 September 2016, Petitioner was discharged from United States Marine Corps Reserve. Petitioner issued Separation Program Designator Code (SPD) SNCl for unacceptable conduct and transferred to the Retired Reserve effective 1 October 2016. See enclosure (1 2). o. The Petitioner contends, through counsel, that portions ofthe DCIS and NCIS investigations were flawed with unsubstantiated evidence, and Petitioner committed fraud in the total amount of$190,676.06. Counsel contends the retirement grade ofFirst Lieutenant is inappropriate due the fact the 801 did not make a recommendation ofretirement grade in which the officer last served satisfactorily for a period ofat least six months as required by reference (b). Counsel asserts that Petitioner served as a Major for almost four years before the first travel claim was submitted, thus exceeding the six months ofsatisfactory service in grade required for separation in the grade of Major/O4. Counsel also asserts the original debt of$190,676.06 be · reduced to $109,059.47 based on legitimate travel pay received through 2006. Counsel further asserts that $23,940.84 be credited due to the arbitrary determination offraud ofthe TAD travel executed in 2012 to 29 by the MFR Finance Officer. Lastly, counsel asserts that DFAS credit $205,628 that the Assistant U.S. Attorney acknowledged the Marine Corps received in payment ofthis debt. Counsel concludes that ifthe entire amount of$205,628 cannot be credited the Petitioner should be credited the $57,913 that was already paid to the U.S. Marine Corps through the Department ofJustice. p. In correspondence attached as enclosure (13), the office having cognizance over the subject matter concerning financial debt addressed Petitioner's application and commented to the effect that they agreed documentation indicates $57,913 ofthe Petitioner's outstanding debt to the government has been satisfied by payment ofrestitution ordered by the court. This amount should be credited to the debt owed by the Petitioner to DF AS. However, any further relief should be denied. q. Petitioner's counsel provided a rebuttal statement concerning enclosure (13). Counsel contends that sufficient evidence was provided that proves that the majority ofthe claims disallowed were in fact legitimate. Further, a detailed accounting ofthe incorrect analysis by is included in Petitioner's initial application, but not addressed by the Headquarters Marine Corps (HQMC) advisory opinion. Finally, counsel requests that the Board require DFAS to deduct any amounts the Board may deem appropriate from the original debt and negate the interes4 fees, and penalties that accrued from the improper amount. Counsel requests that the entire debt be recalculated from the ground up in order to ensure its accuracy. See enclosure ( 14 ). r. In correspondence attached as enclosure (15), the office having cognizance over the subject matter conceming separation grade addressed Petitioner's application and commented that Petitioner's retirement grade was recommended by a 801 that presumably considered all ofthe relevant factors before making a recommendation to the ASN (M&RA). The BOI's recommendation was reviewed by the StaffJudge Advocate to the DC M&RA and the ASN (M&RA), who accepted the 8Ol's recommendation and retired Petitioner in the grade of first lieutenant. Such determinations are administratively final on the day ofretirement without a good cause showing that they should be reopened. Further stating, Petitioner has made no such showing and petition should be denied. CONCLUSION Upon review and consideration ofall the evidence ofrecord, and especially in light ofthe contents ofenclosures, the Board finds the existence ofpartial injustice warranting the following corrective action: The Board determined the following: The NCIS investigatlon found evidence that Petitioner submitted illegitimate travel claims for travel conducted as early as January 2004 as a Captain/O3 in the USMCR. That $57,913.00 ofthe Petitioner's outstanding debt to the government has been satisfied by payment ofrestitution ordered by the court. The TAD travel the Petitioner executed to April 2012 through 17 September 2012 was legitimate TAD travel per reference ( c) and beyond the scope ofinvestigation for fraud by DCIS and NCIS. It was not included in the Commander, MFR report ofmisconduct nor was is in included in the DC M&RA letter to the ASN (M&RA) and should not have been included in the MFR, Finance Officer's Debt Notification and Collection notice of 19 September 2013. The Board concluded the Petitioner's paration grade ofFirst Lieutenant was appropriate and substantially concurred with the comments contained in the advisory opinion ofenclosure (15). Furthermore, the Board concluded that without appropriate investigation as required in chapter 12 of reference ( d) the travel payments made from Disbursing Office Vouchers 454054, 459778, 460264, 461476, 462041, and 463234 totaling $22,242.26 are legitimate and should be credited to Petitioner' s account. RECOMMENDATION That Petitioner's naval record be corrected, where appropriate, to show that: Petitioner's pay account is credited $57,913.00 for previous restitution ordered by the court, effective the date it was paid. Petitioner's pay account be credited $22,242.26 for travel entitlements incurred for official TAD from 23 April 2012 through 17 September Note: HQMC RFF prepare appropriate correspondence to Defense Finance Accounting Service (DF AS) to ensure the above action is taken. A copy ofthis Report ofProceedings will be filed in Petitioner's naval record. 4. Pursuant to Section 6(c) ofthe revised Procedures ofthe Board for Correction ofNaval Records (32 Code of Federal Regulations, ection 723.6(c)), it is certified that quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record ofthe Board's proceedings in the above-entitled matter. 5. The foregoing action ofthe Board is submitted for your review and action . 10/19/2020 Executive Director PRINCIPAL DEPUTY, ASSISTANT SECRETARY OF THE NAVY (M&RA) DECISION: (Performing the Duties ofthe Assistant Secretary of the Navy (M&RA)) Reviewed and Approved Board Recommendation (Partial Relief) PTDO ASN(M&RA)