Dear : 
 
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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on  
8 September 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, and applicable statutes, regulations, and policies.   
 
The Board carefully considered your request to be promoted to the rank staff sergeant, and any subsequent ranks equal to your peers, up to retirement period equaling 25 years of service, as well as any other relief as appropriate.  The Board considered your contention that the 8 August 1994 Special Court Martial (SPCM) Order and Action number 236-94 was wrongfully filed in your official military personnel file (OMPF) despite you being found not guilty.  You assert that, due to this information, the Fiscal Year (FY) 1996 Enlisted to Warrant Officer Selection Board (WO Board) did not select you for [appointment] to WO and that the document directly prohibited your noncompetitive promotion consideration to staff sergeant. 
 
The Board also considered your contention that your chain of command wrongfully submitted adverse information directly to the FY 1996 WO Board and the Calendar Year (CY) 1995 Staff Sergeant Promotion Selection Board.  You argue that your leadership’s actions in submitting the adverse information were arbitrary, capricious, and not in accordance with Marine Corps Regulations.  Additionally, you claim the actions of your leadership materially and adversely impacted your due process rights, and retention in the Marine Corps.  The Board also considered your argument that you received an unjust fitness report for the reporting period 1 March 1992 to 1 February 1993, and that the Performance Evaluation Review Board later removed it from your official military personnel file (OMPF) on 3 April 1996.  
 
With regard to your contention that you were not selected for [appointment] by the FY 1996 WO Board due to adverse material that was wrongfully submitted by your chain of command, the Board determined that this contention lacks merit.  The Board noted that your chain of command forwarded an unfavorable recommendation for your appointment to WO, and was not prohibited from justifying their recommendation.  You were counseled as to the nature and content of the unfavorable endorsement, and given an opportunity to make a statement.  Moreover, your non-selection to WO does not allege an error or injustice in your record to be corrected or removed.   
 
You also contend that a copy of the SPCM Order and Action number 236-94 was in your OMPF, and that it directly prohibited your noncompetitive selection to staff sergeant.  The Board determined this contention is without merit because eligibility for noncompetitive selection for advancement applies to warrant officer selectees who have not yet been appointed.  Since you were not selected for appointment to warrant officer, you were not eligible for noncompetitive selection to staff sergeant.   
 
The Board also noted that there is no evidence, and you submitted none, that your chain of command submitted adverse information directly to either the CY 1994 or the CY 1995 Staff Sergeant Promotion Selection Boards.  Additionally, Marine Corps policy explicitly states that unsolicited letters to promotion selection boards will not be accepted unless forwarded by the Marine concerned.  The Board did acknowledge, however, that adverse material in your OMPF, that was later removed, may have contributed to your failure to select for promotion by the CY 1994 or the CY 1995 Staff Sergeant Promotion Selection Boards.  
 
Although your record is incomplete, it appears that the SPCM Order and Action number 236-94 was removed from your OMPF on or about 27 September 1995.  The record also reflects that, on 6 October 1995, you requested a CY 1995 Enlisted Remedial Selection Board (ERSB) to staff sergeant.  It appears that Headquarters Marine Corps (MMRP-2) either denied your request for a CY 1995 ERSB, or that you were considered and not selected.  
 
On 6 May 1996, your fitness report for the reporting period 1 March 1992 to 1 February 1993 was removed from your OMPF.   
 
Due to having twice failed selection to staff sergeant, you were slated for involuntary separation at your end of active service (EAS) date of 5 October 1996.  However, you requested early release, and were approved for separation effective 5 June 1996, four months prior to your EAS.   
 
The Board was not willing to grant your request for promotion to staff sergeant.  In this regard, the Board noted that, pursuant to Marine Corps policy, due diligence requires that a Marine identify errors, discrepancies, or an injustice in a timely manner and initiate appropriate corrective action.  The Board determined that you did not exercise due diligence in correcting your OMPF prior to the convening of either promotion selection board because you did not take steps to remove your fitness report until after you twice failed selection, and you did not take steps to remove the SPCM Order until after the convening of the CY 1995 promotion selection board.   
 
Additionally, the Board noted that it would be unjust for you to bypass the competitive selection process, where Marines vie for promotion from among their contemporaries within their military occupational specialty, and a majority vote.  There was simply insufficient evidence in your OMPF, and in your application, to establish that you were among the “best and fully qualified” for promotion given the lack of comparative information regarding those Marines with whom you were competing for promotion.  The Board thus concluded that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting corrective action.  
 
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. 
 
 Sincerely,