DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7700-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) MCO 1754.11 (c) MCO 1900.16 (MARCORSEPMAN) Encl:(1) DD Fonn 149 w/attachment (2) NAVMC 118(11) Administrative Remarks of 23 Nov 15 1. Pursuant to the provisions of reference (a), Petitioner, a non-commissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting that, enclosure (2), a NAVMV 118(11) Administrative Remarks ("Page I l") counseling entry dated 23 November 2015, and his 30 November 2015 rebuttal, be removed from his official military personnel file (OMPF). 2. The Board reviewed Petitioner's allegations of error and injustice on 24 September 2019 and, pursuant to its regulations, detennined that no corrective action should be taken on the available evidence of record. As noted below, the Executive Director believes, contrary to the Board, that relief is appropriate. Documentary material considered by the Board consisted of Petitioner's application, together with all material submitted in support thereof, relevant portions of his naval record, 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 that, before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. BOARD CONCLUSION: The Board detennined that the evidence was insufficient to establish the existence of probable material error or injustice. The Board considered Petitioner's request to remove from his OMPF the 23 November 2015 Page 11 entry and his 30 November 2015 rebuttal. The Board considered Petitioner's contention that, in accordance with reference (b), the Marine Corps Family Advocacy and General Counseling Program Order, administrative action is not to be based solely on an Incident Status Detennination (ISD). Petitioner asserts that a Page 11 counseling entry is an administrative action, and that there are no other corroborating facts to substantiate the command's decision to take administrative action against him. The Board noted that, on 18 November 2015, Petitioner's case was presented to the Incident Detennination Committee (IDC), , which determined that an incident involving Petitioner and his wife met the criteria for adult emotional maltreatment, male Service member to female Service member. The Board determined that pursuant to paragraph 6105 of reference (c), Petitioner was properly counseled on 23 November 2015 via a 6105 Page 11 entry for having met the criteria for adult emotional maltreatment. The Board noted that Petitioner submitted a rebuttal to the Page 11 entry, which is on file in his OMPF. Concerning Petitioner's contention that, under reference (b ), the contested Page 11 entry constitutes a material error or injustice, because administrative action is not to be based solely on an ISD, the Board noted that paragraph 4-7a of reference (b) provides that commanders shall "[e]nsure alleged military abusers are held accountable for their conduct through appropriate disposition ... and/or administrative action, as appropriate," and that paragraph 5-3a(l )a provides that the prohibition on taking administrative action based solely on an IDC detennination ''in no way increases or restricts a commander's ability to detennine appropriate accountability for an offense committed by the service member." The Board found no evidence that Petitioner's commanding officer (CO) relied "solely" on the ISD. The Board also determined that the entry was written and issued in accordance with paragraph 6105 of reference (c). Specifically, the entry provided written notification concerning Petitioner's deficiencies or impairments, specific recommendations for corrective action, the locations of available assistance, and a comprehensive explanation of the consequences of failing to take corrective action, and both Petitioner and his CO signed the entry. Moreover, the Board noted that the entry creates a permanent record of a matter that Petitioner's CO deemed significant enough to document, and that his CO was well within his authority to issue the entry. Accordingly, the Board concluded that the contested counseling entry is neither in error nor unjust, and will remain unchanged. BOARD RECOMMENDATION: That Petitioner's request for correction to his record be denied, and that no corrective action be taken. EXECUTIVE DIRECTOR CONCLUSION: Taking into account the findings of the Board, the Executive Director found that corrective action is nevertheless warranted in Petitioner's case, in consideration of reference (b ). The Executive Director noted that paragraph 5-3a(2)(a) of reference (b) expressly prohibits a commander from taking administrative action against a Service member "based solely upon" an act of domestic abuse. The Executive Director determined that the Board's reliance upon reference (b), paragraph 4-7a (commanders shall "[e]nsure alleged military abusers are held accountable for their conduct through appropriate disposition ... and/or administrative action, as appropriate") and paragraph 5-3a(l)a (the prohibition on taking administrative action based solely on an IDC detennination "in no way increases or restricts a commander's ability to detennine appropriate accountability for an offense committed by the service member") is misplaced: A commander's obligation to ensure accountability for a Service member's misconduct does not conflict with the prohibition of administrative action against a Service member based solely upon an act of domestic abuse, because, in detennining the disposition of an act of abuse, a commander "may consider infonnation that was presented to the IDC," and "infonnation presented to an IDC may also be introduced into evidence applicable to the proceeding in question." In other words, in taking administrative action-such as a Page 11 entry-a commander may consider the information presented to the IDC, but cannot consider only the IDC's determination itself. The Executive Director noted that, here, by its express tenns, the contested Page 11 entry clearly appears to have been based solely upon the IDC's detennination, and no other information: "On 18 Nov 2014, [Petitioner was] found to have met criteria for allegations of adult emotional maltreatment, via the Incident Determination Committee. . . . This was in response to allegations of adult emotional maltreatment against {petitioner's] spouse." The Executive Director thus concluded that the Page 11 entry constitutes a material error. In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: That the 23 November 2015 Page 11 entry and Petitioner's 30 November 2015 rebuttal be removed from his OMPF. That no further corrective action be taken. 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.