DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10675-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/ attachments (2) NAVMC 118(11) of 1 Mar 17 (3) rebuttal statement of 7 Mar 17 (4) Uniform Citation and Magistrate's Order of 19 Jan 17 (5) HQMC memo 1070 JPL of 26 Feb 19 1. Pursuant to the provisions of the reference, Petitioner, a non-commissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting removal of his 1 March 2017 Administrative Remarks (Page 11) entry, enclosure (2), and his rebuttal, enclosure (3). 2. The Board, consisting of Mr. , Ms. , and Mr. , reviewed Petitioner’s allegations of error and injustice on 3 December 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, finds 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. Petitioner contends the counseling entry was issued after his case was dismissed in civil court and to prevent the continuation of his career. He further contends that the command informed him that if he did not sign the entry, he would not be permitted to submit a rebuttal. As evidence of his dismissal, Petitioner submitted enclosure ( 4 ), a 19 January 2017 Uniform Citation and Magistrate's Order. c. On 1 March 2017, Petitioner was counseled in enclosure (2) for being cited for exceeding the posted speed limit on 21 May 2016 while subject to an impairing substance. The entry further noted that the charges were dismissed by the state court on 19 January 2017. d. In an advisory opinion (AO) at enclosure (5), the Staff Judge Advocate to the Commandant of the Marine Corps (JPL) recommended that Petitioner's request be disapproved. The AO noted that the reason the charges were dismissed is unknown, and that the dismissal of charges does not equate to innocence or mean that the offense was not committed. The AO also noted that Petitioner did not contend that he did not commit the offense or that it did not occur, and that, in fact, he admitted in his rebuttal that the incident did occur. Therefore, the AO determined that there was nothing unjust about Petitioner's commanding officer (CO) formally counseling him in a Page 11 entry, that his CO had the authority to do so, and that the state court's dismissal of the charges had no effect on this authority. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concluded that Petitioner's request warrants relief. The Board noted the AO from JPL but determined that the counseling entry was unjust. The Board also noted the civil court document and determined that the charges for which the counseling entry was written were dismissed and the counseling entry was prepared after the charges were dismissed. The Board noted further that the citation did not indicate Petitioner's speed or the nature of the impairing substance. The Board thus concluded that, in light of the dismissed charges, any mention of the charges in Petitioner's record is unjust. Accordingly, the Board determined that the l March 2017 entry and Petitioner's 7 March 2017 rebuttal shall be removed. RECOMMENDATION: Petitioner's naval record be corrected by removing the 1 March 2017 Administrative Remarks (Page 11) entry from his record. Petitioner's naval record be corrected by removing his 7 March 2017 rebuttal from his record. Any material or entries inconsistent with or relating to the Board's recommendation be corrected, removed, or completely expunged from Petitioner's record, and no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems/database entries that reference or discuss the material being expunged. 4. 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. 5. The foregoing action of the Board is submitted for your review and action. Executive Director 1/12/2020 Reviewed and Approved 1/25/2020 Assistant General Counsel (M&RA)