From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF XXX XX USMC Ref: (a) Title 10 U.S.C. § 1552 (b) MCO P1400.32D W/CH 1-2 Encl: (1) DD Form 149 w/enclosures (2) Advisory opinion, HQMC memo 1400/3 MMRP-2 of 20 May 20 (3) Petitioner rebuttal to advisory opinion not dated 1. Pursuant to reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by granting the convening of an enlisted remedial selection board (ERSB) for promotion to the rank of gunnery sergeant (GySgt) at the earliest board for which he would have been eligible, had he not been wrongfully separated from the Marine Corps, and to allow him to submit updated material to the ERSB to include documents related to his Equal Opportunity (EO) complaint and investigation. 2. The Board reviewed Petitioner’s allegations of error and injustice on 20 October 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 1 February 2008, Petitioner joined During his tenure with he received four Administrative Remarks (Page 11) counseling entries and two Page 11 6105 retention warnings. In August 2010, he was the subject of an Administrative Separation Board which found no basis for separation and retained him on active duty. On 24 February 2011, Petitioner was the subject of a Competency Review Board (CRB), which found grounds to reduce him from paygrade E-5 to paygrade E-4. Petitioner transferred from to a new command on 10 May 2011. c. From 3 March to 4 April 2014, a Command Investigation was conducted in response to Petitioner’s Equal Opportunity (EO) complaint alleging racial discrimination while he was a member of The CI found evidence of racial bias and command climate issues when Petitioner was a member of the command. d. The Fiscal Year 2014 (FY14) Staff Sergeant Promotion Selection Board convened on 16 July 2014. Petitioner was ineligible for promotion consideration due to his separation before the Board’s adjournment. On 30 July 2014, he was honorably discharged due to high year tenure with an RE-3C reentry code. e. In light of the substantiated EO complaint and in response to his previous petitions for corrective action from April 2014 to November 2016, the Marine Corps Performance Evaluation Review Board (PERB) and the Board took corrective action to (1) remove three fitness reports covering the period from 15 August 2009 to 28 March 2011, (2) remove all derogatory matters that he received during the period from March 2009 to April 2011 from his official military personnel file; (3) restore his promotion to paygrade E-5 with his original E-5 date-of-rank (DOR) with all associated back pay and allowances; (4) award him promotion consideration by the FY14 Staff Sergeant ERSB on two separate occasions; (5) upgrade his reentry code to RE-1A; (6) change his narrative reason for discharge and SPD code; and (7) award him full separation pay. The FY14 Staff Sergeant ERSBs convened on 18 August 2016 and 19 January 2017, respectively. Petitioner was not selected for promotion. f. On 27 June 2017, Petitioner submitted another application to the BCNR for further correction to his record. On 7 July 2017, upon review and consideration of all the evidence of record, the Board substantially concurred with Petitioner’s contentions and determined that relief was warranted. The Board granted his requests for (1) reinstatement in the Marine Corps, with a three-year probationary contract, providing he is otherwise found qualified for active-duty service, that his high year tenure restriction be waived, and that his record reflect continuous service from the date he was discharged; (2) if reinstated, all active-duty pay and allowances from 31 July 2014, as if he was not discharged, with his pay to be offset by the total amount that he received (during his period of separation) in civilian wages, to include his Involuntary Separation Pay; (3) any failure of selection to staff sergeant be removed from his record; and (4) consideration by a FY ERSB that corresponds with the first Staff Sergeant Promotion Selection Board of his category for which he would have been eligible (in-zone) had he not been reduced from E-5 to E-4 by the 24 February 2011 CRB. The Board also directed that the Marine Corps make an exception to policy at reference (b) and authorize Petitioner to submit as update material to the ERSB any documents related to the investigation of his EO complaint and any other material he deems necessary to support his case. g. Petitioner was selected and promoted to staff sergeant with a DOR and effective date of 30 July 2014; he was reinstated in the Marine Corps on active duty effective 31 July 2014 and joined directly to the Wounded Warrior Battalion h. In his application at enclosure (1) Petitioner asserts that he requested remedial consideration for promotion to gunnery sergeant for the Fiscal Year (FY) 2018 USMC GySgt promotion selection board; however, his request was disapproved by Headquarters, Marine Corps (MMPR-2) because his record showed that he had a Primary Military Occupational Specialty (PMOS) of 3531, a MOS for a Sergeant, instead of a PMOS of 3537 (Motor Transport Operations Chief), thus making him ineligible for promotion consideration to GySgt. Petitioner contends that the Board in a previous case granted him remedial promotion consideration to staff sergeant and that all Professional Military Education (PME) requirements were waived. i. Enclosure (2), an advisory opinion (AO) furnished by Headquarters, Marine Corps (MMRP-2), recommended denying Petitioner’s request for remedial consideration for promotion to GySgt, because there were no allocations for the PMOS of 3531. The AO also recommended that the Board not make an exception to policy, as it did when an ESRB was granted to consider Petitioner for promotion to staff sergeant. j. Enclosure (3), Petitioner contends that his PMOS of 3537 (Motor Transport Operations Chief) should be updated so that he may be considered for GySgt by an ESRB. CONCLUSION Upon review and consideration of all the evidence of record the Board determined that Petitioner’s request warrants relief. The Board did not disagree with the AO, given Petitioner’s PMOS of 3531, he was ineligible for promotion consideration to GySgt. However, the Board determined that the AO failed to recognize that Petitioner’s PMOS is 3537 as a staff sergeant vice PMOS 3531 for a sergeant. Considering Petitioner’s unconventional promotion history and numerous errors during his Marine Corps career, the Board determined that an exception to policy of reference (b) is warranted, and that an ERSB to gunnery sergeant shall be convened, and Petitioner may submit to the ERSB documents related to his EO complaint and investigation. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Correct Petitioner’s PMOS to 3537 (Motor Transport Operations Chief). Convene an ERSB so that Petitioner may be considered for promotion to the rank of gunnery sergeant at the earliest board for which he would have been eligible in PMOS 3537. Petitioner be allowed to submit updated material to the ERSB related to the investigation of his EO complaint and any other material Petitioner deems necessary to support his case. 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. The foregoing action of the Board is submitted for your review and action. 1/17/2021 Executive Director Assistant General Counsel (Manpower and Reserve Affairs): Reviewed and Approved Board Recommendation (Grant Relief) 2/8/2021 Assistant General Counsel (M&RA)