DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8899-18 Ref: Signature date This letter is in reference to your application of 21 August 2018 for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 7 January 2020. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. The Board carefully considered your request to remove your 12 February 2018 Administrative Remarks (Page 11) 6105 counseling entry from your official military personnel file (OMPF), and any other corresponding derogatory documents, as well as your request to be promoted to first sergeant with the date of rank you would have received from the Fiscal Year (FY) 2018 Reserve Staff Noncommissioned Officer Promotion Selection Board. The Board did not consider your request to also remove your adverse fitness report (20171001 - 20180222) because you did not first exhaust all available administrative remedies by petitioning the Marine Corps Performance Evaluation Review Board (PERB) before petitioning this Board. The Board considered your contentions that you lacked the required intent (mens rea) to be guilty of hazing; that none of the victims allege that you improperly touched their chevrons; that there is no evidence that you were not complicit in the hazing of the Marines; that you were not present when the hazing occurred. You additionally contend that the “pinning” had occurred in two detachments, and speaks to a larger issue of battalion leadership; that other leaders were equally responsible for the command climate and should be held similarly responsible for the problem of hazing; that you transferred on 7 January 2018 to the Individual Ready Reserve (IRR), and therefore, it was an error to relieve you in February; that you were never properly counseled by the commanding officer; and that the 6105 counseling refers to an outdated version of the Marine Corps’ hazing order. The Board noted that a 22 October 2017 Report of Preliminary Inquiry (PI) recommended a formal command investigation be conducted in order to further investigate alleged hazing that occurred on 15 October 2017. The 6 December 2017 Report of Command Investigation (CI) offers that you were complicit in hazing and contributing to an environment where hazing was allowed to occur. Multiple Marines described you as “making physical contact with newly promoted Marines’ rank, and this contact was described as a light slap, hit, with a cupped hand, firm pat, or lightly tapped.” The investigating officer (IO) determined that it was your responsibility as the staff noncommissioned officer in charge (SNCOIC), to ensure your Marines do not suffer, nor are exposed to, any activity which is cruel, abusive, humiliating, oppressive, demeaning, or harmful (MCO 1700.28B). The IO recommended that you be held accountable for violation of Article 134 or Article 92 of the Uniform Code of Military Justice (UCMJ), and that you be relieved of your position as SNCOIC. On 13 December 2017, your battalion commander concurred with the findings and recommendations in the CI. On 7 January 2018, you were transferred from the Selected Marine Corps Reserve (SMCR) to the IRR. On 12 February 2018, you were issued a Page 11 6105 counseling entry for violation of Article 92, UCMJ – failure to obey a lawful general order by hazing and for being relieved of duties as a result of loss of trust and confidence in your abilities as the SNCOIC to effectively lead, mentor, train and care for your subordinates. You acknowledged (signed) counseling on 22 February 2018 and elected to submit written rebuttal. In your rebuttal, you denied committing misconduct, and you alleged improper procedures in reference to issuance of the counseling. Although the Board did not consider your request to remove your adverse fitness report, the Board did note that it was rendered adverse due to adverse trait marks for setting the example, ensuring well-being of subordinates, and judgment, and due to being issued a 6105 counseling and relief of duties. Your reporting senior (RS) noted that “[a]s the senior enlisted Marine in the unit, [you] failed to demonstrate the highest standards of conduct through [your] complicity in hazing during multiple promotion ceremonies” and that you “failed to instill or reinforce a sense of responsibility among Marines by contributing to a lackadaisical command climate which allowed hazing to occur during multiple promotion ceremonies.” Your RS also noted that you “failed to comprehend the consequences of [your] complicity in the hazing and the impact of those consequences on [your] Marines, and that you possess “a wealth of experience and knowledge, and failed to draw from this to make wise choices.” In response, you alleged that you were denied your due process rights, that you were not given an opportunity to review the CI, that you were not complicit in the hazing of junior Marines, and that you did not participate in, or have prior knowledge of hazing or ceremonial “pinning.” You also assert that you were not “relieved for cause” and that the report was not written in accordance with Marine Corps policy. The third officer sighter (3OS) found “no factual error in the reporting officials’ comments or processing of the report.” On 24 January 2018, the FY 2018 Reserve (SMCR-IRR) Staff Noncommissioned Officer (SNCO) Promotion Selection Board convened. On 14 March 2018, MARADMIN 161/18 announced your selection first sergeant / E-8. However, on 29 March 2018, the Commanding General, Marine Corps Individual Reserve Support Activity (CG, MCIRSA) submitted a request to Headquarters, Marine Corps (MMPR) to delay your promotion. Your promotion selection was subsequently revoked in May 2018. The Board noted that MCO 1700.28B provides that “[n]o commander or individuals in supervisory positions my, by act, word, deed, or omission, condone or ignore hazing if they know or reasonably should have known that hazing may or did occur.” The Board agreed that you did not conspire to haze or injure the Marines. The Board, however, determined that, by your own admission, you were aware that hazing had occurred in both detachments, yet the CI revealed that you continued “making physical contact with newly promoted Marines’ rank, and this contact was described as a light slap, hit, with a cupped hand, firm pat, or lightly tapped. Considering your billet and responsibilities as the SNCOIC of your detachment, the Board substantially concurred with your RS comments that you “failed to demonstrate the highest standards of conduct through [your] complicity in hazing during multiple promotion ceremonies” and that you “failed to instill or reinforce a sense of responsibility among Marines by contributing to a lackadaisical command climate which allowed hazing to occur during multiple promotion ceremonies.” The Board determined that the findings and recommendations of the CI gave sufficient reason, for your CO to relieve you of your duties as the SNCOIC and to issue your 6105 counseling. The Board did not find it relevant or improper that the counseling was issued after you were transferred to the IRR because the decision to relieve you of your duties and to issue the 6105 counseling was approved on 13 December 2017, when your battalion commander concurred with the findings and recommendations in the CI, and the fact that it was formally documented at a later date is not in error or unjust. Moreover, the Board determined that the counseling entry creates a permanent record of a matter your CO deemed significant enough to document, and your evidence did not rebut this decision. The Board also determined that the entry met the 6105 counseling requirements detailed in MCO 1900.16 (MARCORSEPMAN). Specifically, the Board noted that the entry provided written notification concerning your deficiencies, specific recommendations for corrective action indicating any assistance available, a comprehensive explanation of the consequences of failure to successfully take the recommended corrective action, and a reasonable opportunity to undertake the recommended corrective action. You were afforded the opportunity to rebut the counseling, and that rebuttal is included in your record. Although the entry cites a Marine Corps order that was cancelled and replaced by an updated version, the Board determined that it is merely an administrative error and it does not materially change the gist of the counseling. The Board thus concluded that the record does not constitute probable material error or injustice warranting any corrective action. Regarding your contention that other leaders were equally responsible for the command climate and should be held similarly responsible for the problem of hazing, the Board noted that its purpose is to correct errors and injustices in naval records, and that your case shall be considered on its own merits and cannot be compared to others. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, 3/12/2020