Docket No: 2946-20
Ref: Signature Date              
             

           
Dear  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 20 April 2021.  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 13 March 2018, Administrative Remarks (page 11) 6105 counseling entry and fitness report for the reporting period 11 November 2017 to 3 April 2018.  You also request remedial consideration for promotion to E-8.  The Board considered your contentions that your Commanding Officer (CO) exerted unlawful command influence and that he influenced the Investigating Officer (IO) to ensure the minimum recommended punishment would be a 6105 to remove you from Drill Instructor assignment.  You argue that according to criminal law, a person is to be presumed innocent until proven guilty beyond a reasonable doubt; and  by exercising your right not to make a statement the IO assumed you were guilty of wrongful cohabitation and Article 134, section 69 (wrongful cohabitation) is no longer recognized in the Manual for Courts-Martial (2019 ed.).   
 
You claim that during your Request Mast, the Commanding General (CG) agreed to ensure your chain of command would conduct an investigation into matters before issuing a Military Protective Order (MPO).  You also claim that your CG’s statement proves wrongdoing by your command and  agreed to be the Third Officer Sighter on your fitness report due to a conflict of interest with your battalion commander.  
 
The Board, however, determined that your page 11 entry is valid.  In this regard, the Board noted that pursuant to the Marine Corps Separations Manual, you were properly counseled for cohabitating with a woman that was not your wife.  The Board also noted that according to the Marine Corps Individual Records Administration Manual (IRAM) you were properly counseled and also determined that the contested entry was written and issued according to the IRAM.  Specifically, the entry provided written notification concerning your deficiencies, specific recommendations for corrective action, where to seek assistance, the consequences for failure to take corrective action, and it afforded you the opportunity to submit a rebuttal, which you forfeited by electing not to acknowledge the entry.  Moreover, a page 11 entry is administrative and not judicial in nature, thus your CO needed only to conclude that a disciplinary infraction occurred and to determine that your misconduct was a matter essential to document in your record.   
 
The Board found no evidence of undue influence or wrongdoing by your CO and you provided none.  The Board relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties and you did not provide evidence to overcome this presumption.   
 
Concerning your request to remove your fitness report for the reporting period 11 November 2017 to 3 April 2018 and your request for remedial promotion consideration, the Board determined that you have not exhausted your administrative remedies.  The Marine Corps Performance Evaluation Review Board (PERB) is the initial action agency for fitness report appeals, therefore, you must submit your request to the PERB according to the Marine Corps Performance Evaluation Appeals Manual.  Likewise, your request for remedial promotion consideration must be submitted according to the Enlisted Promotions Manual.  Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action. 
 
You are entitled to have the Board reconsider its decision upon 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,