Docket No. 1400-20
Ref: Signature Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD OF             XXX XX  USMC  
 
Ref:  (a) 10 U.S.C. § 1552 
      (b) MCO 5100.19F 
 
Encl: (1) DD Form 149 w/enclosures 
      (2) UPB entry of 9 May 19 
      (3) Administrative Remarks (Page 11) counseling entries of 9 May 19 
      (4) Petitioner’s rebuttal of 14 May 19 
      (5) Petitioner’s rebuttal of 14 May 19 
      (6) HQMC memo 1070 JPL of 12 Mar 20 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting removal of his 9 May 2019 nonjudicial punishment (NJP ) and the associated Administrative Remarks (Page 11) 6105 counseling entry from his military record. 
  
2.  The Board, consisting of ,      reviewed Petitioner’s allegations of error and injustice on 5 March 2021, 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 of record 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. 
 
     b.  Petitioner received NJP on 9 May 2019 for failure to obey a lawful general order, specifically chapter 9 of reference (b), by wrongfully operating a vehicle while under the influence of alcohol.  See enclosure (2).   
 
     c.  On the same date as the NJP, Petitioner was issued enclosure (3), a Page 11 with two counseling entries.  The first, a 6105 entry counseling him for violating chapter 9 of reference (b) by wrongfully operating a vehicle while under the influence of alcohol.  The second, an entry requiring acknowledgement of his understanding that he was eligible but not recommended for promotion to Gunnery Sergeant, for a period of six months, due to the NJP. 
 
      d.  On 14 May 2019, Petitioner submitted enclosures (4) and (5) in rebuttal to the two 9 May 2019 counseling entries.      
 
      e.  Petitioner contends his NJP was unjust because it was administered prior to the initial South Carolina civilian court hearing which dismissed and expunged the driving under the influence (DUI) charge and charged Petitioner with reckless driving.  He further contends the NJP, and the associated counseling entry, should be removed from his military record.   
 
     f.  The Advisory Opinion (AO) at enclosure (6) recommends approval of Petitioner’s request to remove enclosure (2), the Unit Punishment Book (UPB) entry regarding his NJP and the corresponding Page 11 counseling.  The AO states that in order to charge a Marine with a violation of a general order, the order must place the Marine on notice that violating its provisions could result in punitive action.  The AO further states reference (b), which Petitioner was charged with violating, lacked the necessary punitive language to place the Petitioner on notice that he could be charged for driving any vehicle while under the influence of alcohol.  Accordingly, the AO concludes the UPB and associated counseling entries should be removed from Petitioner’s record.   
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the AO at enclosure (6), the Board concluded Petitioner’s request warrants relief.  The Board relied upon the AO’s determination that the order Petitioner was found guilty of violating lacked the necessary punitive language to place him on notice and determined Petitioner’s UPB entry and the associated counseling entries shall be removed.   
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action: 
 
Petitioner’s naval record be corrected by removing enclosure (2), the 9 May 2019 UPB entry.   
 
Petitioner’s naval record be corrected by removing enclosure (3), Page 11 containing the 9 May 2019 6105 counseling entry and the 9 May 2019 promotion-restriction counseling entry.  
 
Petitioner’s naval record be corrected by removing enclosures (4) and (5), his 14 May 2019 rebuttal statements.   
 
That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and that no such entries or material be added to the record in the future.  This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. 
 
 
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.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.