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Maurice B. Pettiford v. Secretary of the Navy

March 31, 2011

MAURICE B. PETTIFORD, PLAINTIFF,
v.
SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Maurice B. Pettiford, a retired Gunnery Sergeant (pay grade E-7) in the United States Marines Corps, brings this action under the Administrative Procedure Act, 5 U.S.C. § 701, et seq., against the Secretary of the Navy, seeking review of the May 18, 2010 decision of the Board for Correction of Naval Records ("BCNR" or "Corrections Board").*fn1 That decision denied plaintiff's petition challenging the May 8, 2010 Enlisted Remedial Selection Board's ("ERSB" or "Remedial Selection Board") decision not to recommend plaintiff for remedial promotion to Master Sergeant or First Sergeant (pay grade E-8) as of Calendar Year 1999.

Plaintiff seeks an order setting aside both decisions and directing the Secretary of the Navy to correct his record to show that he was promoted to pay grade E-8 as of 1999. In the alternative, he seeks an order remanding the case for further proceedings before either the Remedial Selection Board (if both decisions are set aside) or the Corrections Board (if only that decision is set aside). The matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons explained herein, plaintiff's claim for remedial promotion will be dismissed, the May 18, 2010 decision of the BCNR will be set aside, and the case will be remanded to the BCNR for further proceedings in accordance with this opinion.

BACKGROUND

The administrative record in this case is extensive and convoluted, but as plaintiff's Fourth Amended Complaint is limited to his contention that he should have been promoted to either Master Sergeant or First Sergeant, pay grade E-8, retroactive to Calendar Year ("CY") 1999 by the May 8, 2008 ERSB decision or the May 18, 2010 BCNR decision, only the facts and procedural history that bear directly on that claim are set forth herein.

Plaintiff enlisted in the United States Marine Corps in May 1979. (Administrative Record ("AR") 138.) By 1990, he had attained the rank of Staff Sergeant, pay grade E-6.*fn2

(Def.'s Statement of Facts ¶ 2, July 2, 2010 ["Def.'s Facts"].) In 1993, 1994, and 1995, the regularly scheduled Staff Noncommissioned Officer Selection Board considered but did not recommend plaintiff for promotion to Gunnery Sergeant, pay grade E-7 (Def.'s Facts ¶ 2), but the 1996 Selection Board did promote him. (Def.'s Facts ¶ 6; 4th Amended Compl. ¶ 10 ["4th Compl."].) In 2000 and 2001, the regular Selection Board considered but did not recommend plaintiff for promotion to First Sergeant or Master Sergeant, both at pay grade E-8.*fn3 (AR 269; Def.'s Facts ¶ 10.) In June 2002, due to his failure to be promoted, plaintiff was involuntarily retired from the Marines Corps. (AR 909; Def.'s Facts ¶ 20.)*fn4

I. PRE-LITIGATION ADMINISTRATIVE PROCEEDINGS

On March 31, 1994, after failing to be promoted to Gunnery Sergeant by the regular Selection Board, plaintiff petitioned the BCNR to have certain material relating to a 1992 disciplinary action removed from his file and, once the material was removed, for reconsideration for promotion by the Remedial Selection Board. (AR 610.)

As a general matter, the Remedial Selection Board, which is "constituted by authority of the Commandant," is "an advisory board that provides advice to the Commandant of the Marine Corps on Staff Noncommissioned Officer remedial promotion cases." (AR 341.) It is "authorized to review all Marine enlisted personnel records referred to it for the purpose of making recommendations concerning remedial promotion to the [Staff Noncommissioned Officer] grades." (AR 341.) The BCNR, which is composed of civilians appointed by the Secretary of the Navy, "may correct any military record ... when [the Secretary of the Navy acting through the Board] considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a).

On December 12, 1995, the BCNR recommended that the Secretary grant full relief, and on April 11, 1996, that recommendation was approved and the Secretary ordered the 1992 material redacted from plaintiff's file. (AR 597-98.) On May 1, 1996, plaintiff requested consideration for remedial promotion for 1993, 1994 and 1995. (AR 611-17.) It was while plaintiff was awaiting a decision on that request that the 1996 regular Selection Board, with plaintiff's corrected record before it, promoted him, effective July 1, 1996. (AR 598-99.) On June 27, 1996, however, the Remedial Selection Board decided not to recommend remedial promotion. (AR 590; Def.'s Facts ¶ 5, 7; 4th Compl. ¶ 13.) On August 21, 1996, plaintiff petitioned the BCNR for the same relief. (AR 591.) On March 18, 1997, the BCNR denied Mr. Pettiford's request to backdate his promotion to 1993. (AR 448.)

In 2001, after the 2000 and 2001 regular Selection Boards had failed to promote him to either First Sergeant or Master Sergeant, plaintiff discovered that an electronic document that reflected the 1992 disciplinary action that the Corrections Board had previously ordered redacted still remained in his record. (4th Compl. ¶ 13; Def.'s Facts ¶ 11.) Thus, plaintiff petitioned the BCNR to request removal of this document. (AR 428-433.) He also requested that his promotion to Gunnery Sergeant be backdated to 1993, and that the BCNR promote him to Master Sergeant without referring him back to the Remedial Selection Board. (AR 428-33, 471.) On May 30, 2001, the BCNR informed plaintiff that, effective May 23, 2001, all references to plaintiff's 1992 disciplinary infraction had been removed from the electronic version of his record and, therefore, that he could seek remedial consideration "for all selection boards that may have been affected" by the information. (AR 276, 422.) On July 2, 2001, plaintiff submitted his request for remedial promotion to Gunnery Sergeant as of 1993 and, if granted, remedial promotion to Master Sergeant for the appropriate year. (AR 274.)

On August 29, 2001, the Remedial Selection Board recommended that plaintiff be remedially promoted to Gunnery Sergeant as of November 1, 1994, a recommendation that was approved on August 31, 2001. (AR 52, 55, 57.) Based on this revised promotion date, plaintiff would have been eligible for promotion to First Sergeant or Master Sergeant before the regularly scheduled 1999 Selection Board, so the Remedial Selection Board proceeded to consider whether to recommend plaintiff for calendar years 1999, 2000 and 2001. On November 16, 2001, though, the Remedial Selection Board decided not to recommend remedial promotion for 1999, 2000 or 2001. (AR 65-71.) Plaintiff thereafter requested relief from the BCNR. (AR 170-173.) After the BCNR denied relief on May 6, 2004 (AR 166), plaintiff filed his initial complaint in this Court. (Compl., Oct. 24, 2005.)

II. POST-LITIGATION ADMINISTRATIVE PROCEEDINGS

Since plaintiff filed his initial complaint, there have been additional administrative proceedings before both the Remedial Selection Board and the BCNR. Only the Remedial Selection Board's most recent decision, issued on May 8, 2008,*fn5 and the BCNR's May 18, 2010 decision denying plaintiff's application for relief from that decision are material to plaintiff's Fourth Amended Complaint*fn6 and the pending motions.

A. May 8, 2008 Decision of the Enlisted Remedial Selection Board

On May 5, 2008, the Commandant issued a precept convening the Remedial Selection Board for May 8, 2008 (AR 1062-64), and on May 8, 2008, the Remedial Selection Board convened to consider 13 Marines of differing ranks, including plaintiff, who had been identified as "eligible . . . for remedial consideration for promotion" (AR 1052-53, 1058-59) and to decide whether to recommend each "for promotion to the next higher grade." (AR 1053.) Of the Marines under consideration, plaintiff was the only one being considered for remedial promotion as of calendar year 1999, 2000 or 2001.

Three documents were to guide the May 8, 2008 Remedial Selection Board's decision-making process: (1) Marine Corps Order ("MCO") 5420.16C (AR 347); (2) the "Precept Convening the CY 1999 Sergeant Major Through Master Sergeant Selection Board" (AR 1066-76 ["1999 Precept"]); and (3) the May 5, 2008 "Precept Convening the Enlisted Remedial Selection Board" for May 8, 2008 (AR 1062-64 ["2008 Remedial Precept"]).

(1) Marine Corps Order 5420.16C: Marine Corps Order 5420.16C provides "information, guidance and [] assign[s] responsibilities concerning the operation and functioning of the Enlisted Remedial Selection Board." (AR 341.) "[T]he guidance and procedures contained [therein] or specifically referenced . . . are considered the sole ...


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