From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD OF  
  
 
Ref:   (a) Title 10 U.S.C. § 1552 
 (b) MCO 1900.16 
 (c) MCO P1070.12K 
 
Encl:   (1) DD Form 149 w/enclosures 
 (2) Administrative Remarks (Page 11) 6105 counseling entry of 6 May 19 
 (3) HQMC memo 1070 JPL of 17 Apr20 
 (4) Petitioner’s rebuttal of 3 Mar 21 
 
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 6 May 2019 Administrative Remarks (Page 11) 6105 counseling entry. 
 
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 16 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.  Pursuant to paragraph 6105 and reference (b), Petitioner was issued enclosure (2), a 6105 counseling entry for violation of the Uniform Code of Military Justice, Article 92 (failure to obey order or regulation) and Article 134 (wrongful interference with an adverse administrative proceeding).  Petitioner contends that the counseling entry is factually weak and unsubstantiated, misleading in context and unjust.  He asserts that he was persecuted by a matter of opinion, exacerbated by rumors and command climate.    
 
 c.  The Advisory Opinion (AO), enclosure (3), recommends Petitioner’s request be granted, in part.  The AO determined that Petitioner did not engage in fraternization in violation of U.S. Navy Regulations, only unprofessional conduct.  However, there is sufficient evidence that Petitioner attempted to interfere with an adverse administrative proceeding.  The AO also determined that, although Petitioner did exercise poor judgment throughout the day, there is not sufficient evidence that he drove while impaired or that he failed to prevent a sexual assault from occurring.  The AO noted that Article 134, UCMJ was renumbered to Article 131g in the 2019 version of the Manual for Courts-Martial.  The AO, therefore recommended the 6105 be redacted to reflect a violation of Article 131g, UCMJ, as well as poor judgment.   
 
 d.  In Petitioner’s rebuttal at enclosure (4), he specifically contends that the 6105 entry is missing a required statement that precludes an adequate explanation of the impact the counseling has, making it unjust because it does not describe the impact it has regarding veteran benefits and civilian employment.  He also asserts that Article 134, UCMJ is no longer applicable, and therefore substantiates the deceiving nature of the counseling entry.  
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the findings and recommendation of the AO, the Board concluded that Petitioner’s request warrants partial relief.  The Board concurred with the AO that Petitioner did not engage in fraternization in violation of U.S. Navy Regulations, and that there was insufficient evidence that he drove while impaired or that he failed to prevent a sexual assault.  The Board substantially concurred with the AO and concluded that the 6105 shall be redacted to reflect a violation of Article 131g, UCMJ, as well as poor judgment.   
 
With regard to Petitioner’s contention that the 6105 entry is missing a required statement, the Board determined that this contention lacks merit.  The Board noted that, pursuant to reference (c), each time the UCMJ is explained to enlisted Marines as required by Article 137 of the UCMJ, an explanation will be made of the types of administrative separation; the basis for their issuance; possible characterization of service; the possible effects of characterization upon reenlistment, civilian employment, veterans benefits and related matters; and the possible denial of certain benefits to Marines who fail to complete at least two years of an original enlistment.  The Board noted, however, that this explanation may be done by fact sheet or other document, and that this requirement is a command responsibility, not a procedural entitlement.  Therefore, failure by a Marine to receive or to understand such explanation does not create a bar to separation or characterization of service, and it is not a required element of a 6105 counseling.    
The Board thus concluded that the 6105 counseling entry, once corrected, will create a permanent record of a matter that Petitioner’s commanding officer deemed significant enough to document, and the Petitioner’s evidence did not show otherwise.  The Board also determined that the entry meets the 6105 counseling requirements detailed in reference (b).   
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action: 
 
Petitioner’s naval record be corrected by redacting enclosure (2), his 6 May 2019 Page 11 6105 counseling entry as follows: 
 
• First paragraph, redact “Article 92 (Failure to obey order or regulation) U.S. Navy Regulation 1165 (Fraternization).” 
 
• First paragraph, change “Article 134” to “Article 131g” 
 
• Second paragraph, redact “to include sexual assault.  Instead, you facilitated excessive drinking and fraternization resulting in misconduct.  Your failure in leadership resulted in an extremely intoxicated Marine being left alone in a vehicle and inappropriate sexual contact between a SNCO and NCO.  Your operation of your vehicle after drinking led the IO to believe you were driving over the legal limit and endangering the fellow Marines in your vehicle and the public.” 
 
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.  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.