DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S, COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 7630-19  
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 Pl610.7 (PES) 
     (e) Manual for Courts-Martial (2016 ed.) 
     (f) JAGINST 5800.7F (JAGMAN) 
     (g) MCO P5800.16A W/CH 1-7 (LEGADMINMAN) 
     (h) MCO Pl400.32D WCH 1 (MARCORPROMMAN, Vol 2, ENLPROM) 


Encl:(1) DD Form 149 
     (2) BCNR ltrES Decision Docket No: 6151-17 
     (3) BCNR ltr JDR Decision Docket No: 3856-18 
     (4) HQSVC BN CO ltr 1000/Adj of2 Aug 19 

1. Pursuant to the provisions ofreference (a), Petitioner, a staff non-commissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting that his record be corrected by adjusting his date of rank to the date of rank he would have received had he been selected by the Fiscal Year (FY) 2011 Gunnery Sergeant/E7 Promotion Selection Board. 

2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 27 November 2019 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 ofrecord 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 8 August 2007, Petitioner accepted nonjudicial punishment (NJP) for adultery. 

c. Petitioner was not selected for gunnery sergeant/E7 by the FY 2011 through FY 2016 Gunnery Sergeant/E7 Selection Boards. 

d. On 31 January 2017, Petitioner's NJP was set aside by the Commanding Officer (CO), , U.S. Marine Corps . All rights, privileges, and property affected by virtue of the NJP were thereby 
restored. 

e. On 2 February 2017, Petitioner submitted a request to the Performance Evaluation Review Board (PERB) to remove the adverse fitness report he received as a result of the NJP. The 
PERB denied his request. The PERB found that the CO, HQSVC BN, , did not have the authority to set aside Petitioner's NJP, and therefore determined that the associated adverse fitness report was not in error or unjust. 

f. On 1 July 2017, Petitioner was promoted to the grade of gunnery sergeant/E7 as a result of his selection by the FY 2017 gunnery sergeant/E7 Promotion Selection Board. 

g. On 11 October 2017, the Board directed the removal of the fitness report that covered the period in which the Petitioner accepted NJP. See Enclosure (2). 

h. On 12 March 2019, the Board denied Petitioner's request for an adjusted date ofrank. See enclosure (3 ). 

i. On 7 August 2019, the Petitioner submitted a new DD Form 149. See enclosure (1). In support of his renewed application, Petitioner submitted a letter from the CO, HQSVC BN, MARFORCOM, clarifying that he does indeed have the authority to set aside Petitioner's NJP. See enclosure (4). 

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board concluded that Petitioner's request warrants partial relief. In this regard, the Board declined to grant the Petitioner's request for an adjusted date of rank. However, they concurred with enclosure (4) that the Petitioner's CO had the authority to set aside the NJP. Therefore, the Board determined that an exception to policy was warranted, and that a remedial selection board should be convened outside of the three-year period established by reference (h) to grant Petitioner remedial promotion consideration by the FY 2011 Gunnery Sergeant/E7 Selection Board as a result of the removal of material from his OMPF. 

RECOMMENDATION 

In view of the above, the Board recommends the following corrective action. 
An exception to the three-year period, otherwise mandated by reference (h), shall be made to convene an enlisted remedial selection board to grant Petitioner remedial promotion consideration by the FY 2011 Gunnery Sergeant/E7 Selection Board as a result of the removal of derogatory material from his OMPF. 


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 Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)), 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. 

6. The foregoing action of the Board is submitted for your review and action.