Dear : 
 
This letter is in reference to your application 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 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  30 June 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.   
 
The Board carefully considered your request to reverse the decision to involuntarily transfer you to the Individual Ready Reserve (IRR), and to restore lost wages and retirement points due to your involuntary transfer to IRR. 
 
The Board considered your contention that the decision to involuntarily transfer you to the IRR was based on a retaliatory investigation subsequent to a protected communication to Senator Cardin.  You also contend that the investigating officer (IO) obtained documents from you without mentioning that you were under investigation, in violation of your Article 31 (b) rights.  You allege that the investigation is, at best, unfair and replete with opinions not based on fact, and that any evidence provided in your favor and corroborated by other Marines’ statements are ignored and not included with the investigation.  Lastly, you contend that the interpretation of the  legal advisor of 37 U.S. Code section 206(a) is clearly wrong and further disproved by the cited case law (O’Hanlon v. United States). 
 
With regard to your contention that the decision to involuntarily transfer you to the IRR was based on a retaliatory investigation subsequent to a protected communication to Senator Cardin, the Board determined that this contention lacks merit.  The Board noted that the Whistleblower Reprisal Investigation Directorate, DoD Office of Inspector General, completed an oversight review of your complaint and concurred with the Inspector General of the Marine Corps’ recommendation that your complaint did not meet the requirements for an investigation in accordance with Title 10, United States Code, Section 1034 (10 U.S.C. §1034), “Protected communications; prohibition of retaliatory personnel actions,” implemented by DoD Directive 7050.06, “Military Whistleblower Protection.”  The Board determined that there is no evidence in the record, and you submitted none, to substantiate your allegation of reprisal. 
 
The Board considered your contention that the investigating officer (IO) obtained documents from you without mentioning that you were under investigation, in violation of your Article 31 (b) rights.  The Board determined that, even assuming arguendo—but not conceding—that this errors did occur, it is harmless and not material, because the failure to advise you of your rights only makes any unwarned statement you made inadmissible at a court-martial; other uses (nonjudicial, administrative uses) of an unwarned statement are not prohibited. 
 
You allege that the investigation is, at best, unfair and replete with opinions not based on fact, and that any evidence provided in your favor and corroborated by other Marines’ statements are ignored and not included with the investigation.  The Board determined that this contention is merely speculation and immaterial because it does not allege an error or injustice in your record to be corrected or removed.  The Board also noted that you were not denied your procedural right to comment. 
 
With regard to your contention that the 4th Marine Division legal advisor’s interpretation of 37 U.S. Code section 206(a) is clearly wrong and further disproved by the cited case law (O’Hanlon v. United States), the Board noted that the Command Inspector General,  and the Commanding General, ,  , conducted an inquiry into your concerns of legal error and determined that your allegations were unfounded.  The Board thus substantially concurred with the legal analysis that was conducted by the  legal advisor and concluded that this contention lacks merit.  Furthermore, the Board determined that this contention is immaterial because it does not allege an error or injustice in your record to be corrected or removed. 
 
In view of the foregoing, the Board concluded that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting corrective action.  
 
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.