DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 8523-18 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 1900.16 (MARCORSEPMAN) (c) MCO P1070.12K W/CH 1 (IRAM) (d) JAGINST 5800.7F (JAGMAN) Encl:(1) DD Form 149 (2) Petitioner's UPB entry of 4 Dec 17 (3) Administrative Remarks (Page 11) 6105 counseling of 4 Dec 17, w/undated rebuttal, and promotion restriction counseling of 4 Dec 17 (4) HQMC memo 1070 JPL of 17 Jul 19 1. Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosure (I) with this Board, requesting that his record be corrected by removing his 4 December 2017 nonjudicial punishment (NJP) and all associated adverse material. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 24 September 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, with the exception of the Marine Corps Performance Evaluation Review Board (PERB) to request removal of his adverse fitness report for the reporting period 19 August 2017 to 4 December 2017 resulting from his 4 December 2017 NJP. b. A 13 November 2017 command investigation (CI) found that Petitioner made multiple unauthorized charges on his government travel charge card (GTCC), totaling $848.16. Additionally, the CI found that Petitioner had completed Travel Card 101 training. c. On 4 December 2017, Petitioner received NJP for violation of Article 92 (failure to obey order or regulation) of the Uniform Code of Military Justice (UCMJ). Petitioner was properly notified of his right to refuse NJP and afforded the opportunity to consult with a military lawyer before deciding whether to accept NJP. Petitioner chose to accept NJP and was awarded a suspended forfeiture of pay. He was advised of his right to appeal the NJP, and chose not to appeal. The UPB at enclosure (2) documenting Petitioner's NJP was filed in his official military personnel file (OMPF). d. Petitioner was also issued enclosure (3), a Page 11 with two counseling entries. The 6105 entry counseled Petitioner regarding his NJP. Petitioner acknowledged the counseling and submitted a written rebuttal. Enclosure (3) also contains a promotion restriction entry counseling Petitioner that he was eligible but not recommended for promotion to first sergeant or master sergeant due to his NJP. (Reference (c) requires a "not recommended for promotion entry for each month/quarter a Marine is not recommended for promotion to the grades of PFC­Sergeant.") e. Petitioner contends that the punishment imposed on 4 December 2017 was inappropriate and unjust, because the Defense Travel System (DTS) contributed to his unfavorable economic situation. Additionally, he asserts that he paid off the balance of his GTCC and did not intend to defraud or steal from the government. £ An advisory opinion (AO) furnished by Headquarters, Marine Corps (JPL) recommended that Petitioner's request be denied, noting that his misuse of his GTCC was substantiated by a CI and he admitted to the misuse. The AO also noted that it was within Petitioner's CO's discretion to impose NJP and Petitioner did not appeal the NJP, and concluded that the NJP did not constitute an error or injustice. Further, the punishment was lenient, and all punishment was suspended. JPL opined that, even if Petitioner had difficulties with the DTS, he was not forced to misuse his GTCC, and paying the balance at some point after misuse is irrelevant to the offense, as is whether he intended to defraud or steal from the government. CONCLUSION The Board did not consider Petitioner's implicit request to remove his adverse fitness report because he did not first exhaust all available administrative remedies-the PERS-before petitioning the Board. Upon review and consideration of all the evidence of record, the Board concluded that Petitioner's remaining requests warrant partial relief. In this regard, the Board noted that, pursuant to reference (c), promotion restriction entries are issued when a Marine is not recommended for promotion to the grades of private first class through sergeant. Because Petitioner was a gunnery sergeant when the promotion restriction counseling was issued, the Board determined that the entry is in error and shall be redacted from the Page 11 at enclosure (3). Regarding Petitioner's request to remove the UPB at enclosure (2) documenting his 4 December 2017 NJP, the Board concurred with the AO's recommendation, noting that a CI substantiated Petitioner's misuse of his GTCC, despite having completed Travel Card 101 training. The Board noted that, pursuant to reference (d), the purpose ofNJP proceedings is to determine whether an offense was committed by the member and, if appropriate, to impose punishment. The Board detennined that Petitioner's CO appropriately found by a preponderance of the evidence that Petitioner violated Article 92, UCMJ. Additionally, the Board detennined that it was appropriate for Petitioner's CO to take administrative and disciplinary action, and that the NJP was appropriate, within the limits of the CO's authority, and properly documented in Petitioner's OMPF in accordance with references (c) and (d). The Board also detennined that the counseling entry documenting Petitioner's NJP is administratively and procedurally correct as written and filed. Furthennore, the Board noted that Petitioner failed to provide substantial evidence demonstrating the existence of a probable material error or injustice warranting removal of the UPB and NJP. The Board thus concluded that, with the exception of the promotion restriction counseling entry, the contested material in Petitioner's OMPF is not in error or unjust, and shall remain in his OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner's naval record be corrected by redacting the Page 11 at enclosure (3) to remove the 4 December 2017 promotion restriction counseling entry. No further relief be granted. 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.