Docket No: 3763-20 
Ref: Signature Date 


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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

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. 

A three-member panel of the Board, sitting in executive session, considered your application on 23 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, as well as applicable statutes, regulations, and policies. 

The Board carefully considered your request to remove your 20 June 2017 Administrative Remarks (Page 11) 6105 counseling entry from your official military personnel file (OMPF).  The Board considered your contention that the counseling was unjust because you did not steal or wrongfully appropriate anything.  You argue that you were at the location but did not know about the stolen phone until after you departed the location.  You also contend that you were not issued your Article 31, Uniform Code of Military Justice (UCMJ) rights, or afforded an opportunity to seek counsel before being interviewed by the company first sergeant.  Lastly, you contend that the officer that issued your counseling entry did not have special court-martial convening authority as required by United States Naval Regulations 1990 with change 1 (U.S. Navy Regulations 1990 w/CH 1). 

The Board noted that pursuant to paragraph 6105 of Marine Corps Order (MCO) 1900.16 (2015 ed.), the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), you were issued a 6105 entry counseling you for being “involved in the theft of a cellular phone that did not belong to you while on liberty.” The Board also noted your statement that you picked up the phone and gave it to another Marine.  The Board determined that your admission to grabbing the phone and giving it to the other Marine, directly involved you in the theft.  The Board noted too that, pursuant to MCO 1070.12K, the Marine Corps Individual Records Administration Manual (IRAM), you were properly counseled and determined that the contested entry was written and issued in accordance with the IRAM.  Specifically, the entry provided written notification concerning your deficiencies, specific recommendations for corrective action, where to seek assistance, and consequences for failure to take corrective action, and it afforded you the opportunity to submit a rebuttal. 
Concerning your contention that you were not issued your Article 31, UCMJ rights or afforded legal counsel, the Board noted your reviewing officer’s comment that you were in fact issued your Article 31, UCMJ rights.  The Board found no evidence that you were not issued your Article 31, UCMJ rights, and you provided none.  

Concerning your contention that the officer that issued your Page 11 did not have special court-marital convening authority, the Board noted that pursuant to paragraph 1002.13, of the MARCORSEPMAN (2019 ed.) a Commander/Commanding Officer is defined as “. . .  aboard selected or duly appoint commissioned officer or warrant officer who . . .  exercises special court-marital convening authority and primary command authority. . .” However, the Board also noted the requirement for the issuing officer to have special court-martial convening authority was not a requirement until two years after your entry was issued. The Board thus concluded that there is no probable material error 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.