Docket No 4001-20

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 P1070.12K (IRAM) 
	 (c) MCO 1900.16 (MARCORSEPMAN) 
 
Encl:   (1) DD Form 149  
	(2) Administrative Remarks (Page 11) 6105 counseling entry of 8 Jul 19 
	(3) Administrative Remarks (Page 11) 6105 counseling entry of 17 Mar 20 
	(4) Administrative Remarks (Page 11) counseling of 10 Jul 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 that his naval record be corrected by removing his 8 July 2019 and his 17 March 2020 Administrative Remarks (Page 11) 6105 counseling entries.  
                                              
2.  The Board, consisting of  and  reviewed Petitioner's allegations of error and injustice on 4 May 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 the 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, finds as follows: 
 
     a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.   
 
     b.  On 8 July 2019, Petitioner was issued enclosure (2), a Page 11 6105 entry counseling him for “being formally relieved of [his] duties as the Motor Transport Maintenance Chief” and his violation of the Uniform Code of Military Justice, Article 92 (failure to obey an order or regulation) and Article 107 by fraudulently completing maintenance actions.  Petitioner acknowledged the counseling and submitted a rebuttal, denying any wrongdoing.    
 
     c.  On 17 March 2020, Petitioner was issued enclosure (3), a Page 11 6105 entry counseling him for violation of MCO 5354.1E-V2 from on or about 15 June 2018 to 12 March 2019 for sexually harassing subordinate Marines, harassing subordinate Marines, and creating an intimidating, hostile, abusive, and adverse work environment.  Petitioner was also counseled for bullying a sergeant through cruel, abusive, humiliating, oppressive, demeaning and harmful behavior; resulting in the diminishment of the sergeant’s dignity, position, and status among the Marines in the unit.  Petitioner acknowledged the counseling and submitted a rebuttal, denying any wrongdoing.   
 
     d.  Petitioner contends that he was exonerated at an Administrative Separation Board (ASB), that determined he did not commit any misconduct, and as a result, the ASB found no basis for separation and no basis for the contested Page 11 6105 counseling entries.  Petitioner also asserts that he is the subject of unlawful retribution by his chain of command because his command disagreed with the result of the ASB and refused to let him reenlist.  
          
     e.  On 17 March 2020, Petitioner was issued enclosure (4), a Page 11 counseling notifying Petitioner that he is not eligible and not recommended for reenlistment due to not demonstrating high standards of leadership, professional competence, and personal behavior. 
                          
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief.  In reaching its decision, the Board noted that references (b) and (c) provide commanders wide discretion regarding the subject-matter of a counseling, so long as a commanding officer has the necessary understanding of the facts and circumstances surrounding the subject matter of the counseling in order to exercise the judgment entrusted upon him or her.   
 
The Board determined that the issuing officer was well within his discretionary authority to issue the 6105 counselings, and that when issued, the Page 11 entries were valid as written and filed in Petitioner’s official military personnel file (OMPF).  The Board also determined that the entries met the 6105 counseling requirements detailed in references (c).  Specifically, the Board noted that the entries provided written notification concerning his deficiencies, specific recommendations for corrective action indicating any assistance available, and notification that he was being processed for administrative separation.  He was afforded the opportunity to rebut the counselings, and his rebuttals were also filed in his OMPF.   
 
Next, the Board noted that per reference (b), Page 11 entries that concern administrative discharge will not remain in a member’s OMPF if they do not, upon final review, result in discharge or reduction.  The Board thus concluded that the entries shall be redacted to remove the portion notifying Petitioner that he was being processed for administrative separation.   
 
With regard to Petitioner’s contention that he was exonerated by the ASB, the Board noted that  
the administrative separation process is an administrative employment process and is not intended—nor does it function—as a method to overturn or invalidate other Marine Corps  procedures or administrative actions, and that, although a 6105 counseling can serve as the initial basis for beginning the administrative separation process, it is the underlying conduct that an ASB ultimately considers.  The Board noted that, although the ASB did not find sufficient evidence to warrant his separation from the Marine Corps, that does not impact the validity of the 6105 counselings, and that it is conceivable and permissible that his Commanding Officer and the members of the ASB may arrive at different findings.  The Board also noted that the ASB’s retention recommendation did not equate to a favorable endorsement for Petitioner’s reenlistment.   
 
The Board also determined that Petitioner’s contention that he is the subject of unlawful retribution by his chain of command is without merit.  In this regard, Petitioner furnished no evidence other than the fact that he was denied reenlistment.   
 
The Board thus concluded that Petitioner did not furnish sufficient evidence demonstrating probable material error or injustice warranting removal of the contested Page 11 entries.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by redacting the 8 July 2019 and 17 March 2020 Page 11 counseling entries at enclosures (2) and (3).  Specifically, remove from both entries, the sentence “I understand that I am being processed for the following judicial or adverse administrative action: Administrative Separation in accordance with MCO 1900.16 Ch 2 paragraph 6210.6: Commission of a Serious Offense.” 
 
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 Regulation, 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.                      

									   6/2/2021
								
									   Executive Director