DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 455-20 Ref: Signature Date 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 1610.7 Encl: (1) DD Form 149 w/enclosures (2) Administrative Remarks (Page 11) of 8 Nov 17 w/Rebuttal (3) Administrative Remarks (Page 11) of 17 Nov 17 w/Rebuttal (4) Fitness Report for the reporting period 6 Jun 17 to 21 Dec 17 (5) HQMC Routing Sheet and attached correspondence of 23 Jul 18 (6) Fitness Report for the reporting period 13 May 16 to 5 Jun 17 (7) HQMC memo 1610 MMRP-30 of 15 Nov 19 (8) CMC ltr 1610 MMRP-13/PERB of 7 Jan 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 removal of an adverse fitness report and removal of all associated derogatory material, to include a Report of Misconduct (ROM) with endorsements and enclosures, and Administrative Remarks (Page 11) counseling entries. 2. The Board reviewed Petitioner’s allegations of error and injustice on 25 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. Petitioner was a Battalion Commander whose unit experienced a tragic live-fire accident resulting in the death of a Marine and serious injury to another Marine. The Marine who shot the two Marines was convicted at Court-Martial and sentenced to a bad conduct discharge. This incident was subject to a Command Investigation (CI) that ultimately substantiated findings of dereliction of duty on the part of the Petitioner. The Petitioner was subsequently issued enclosure (2), a Page 11 counseling related to the incident and investigative findings; Petitioner submitted a statement in rebuttal to this counseling. In addition, Petitioner was also subject to another separate CI related to his failure to properly process and forward a Request Mast to the Regimental Commander of ; the CI substantiated findings of dereliction of duty on the part of the Petitioner. The Petitioner was subsequently issued enclosure (3), a Page 11 entry related to the incident and investigative findings; Petitioner submitted a statement in rebuttal to this counseling. As a result of the substantiated CIs, the Commanding General, – Petitioner’s Reviewing Officer (RO) memorialized the adverse information in enclosure (4); a Fitness Report for the reporting period 6 June 17 to 21 December 2017. The CG, , also submitted to the Commandant of the Marine Corps (JPL) a ROM that was also endorsed, with specific rationale, by the Commanding General, III Marine Expeditionary Force. The Deputy Commandant (Manpower and Reserve Affairs) determined that the information provided, while adverse, did not warrant administrative separation, but that adverse material concerning the matter would be included in Petitioner’s OMPF. See enclosure (5). c. Petitioner contends that the Defense Counsel for the convicted lance corporal (LCpl), who had full access to the investigation, did not believe that he (Petitioner) was derelict of his duties in preparing the Engineer Platoon for Range 108. Moreover, the tragic results were due to the LCpl’s admitted negligence and was not based on an unsafe range, untrained range personnel, or planning failures. Most importantly, it was not based on any failure in leadership or dereliction of duty. Next, Petitioner contends that his RO and the Staff Judge Advocate who provided legal review of the investigation were biased, and that several aspects of Range 108 CI and associated Page 11 were not accurate and in some cases, lies. He also asserts that he lacked legal representation due to a conflict of interest with all Defense Counsel across the entire Pacific Region, which impacted his ability to receive advice and counsel. Next, Petitioner noted that for the fitness report at enclosure (6), his RO gave him a “7” block comparative assessment, even after receiving a brief concerning the conduct of Range 108, and with access to numerous versions of the Range 108 Naval Criminal Investigative Service (NCIS) Investigation. He argues that the next (contested) fitness report with the same RO was undeservedly marked in the “0” block. Furthermore, he argues that he is the only lieutenant colonel out of 125 total observed reports who received a “0” mark by his RO, even though he was not relieved of command. Petitioner also asserts that his reporting senior (RS), who had significantly more direct observation of him, and who had access to the NCIS investigation, did not make any marks adverse. His RO, however, did not concur with his RS’s assessment, but only included a single sentence with quantifiable information justifying the adverse nature of the report, and omitted any event from the reporting period, but included events, which took place in the previous reporting period. Lastly, Petitioner contends that he did not have an opportunity to describe the inconsistencies of the investigations and Page 11 entries to unbiased Board of Inquiry (BOI) members. d. The advisory opinion (AO), enclosure (7), determined that Petitioner has not met the burden of proof, nor shown by preponderance of evidence probable material error, substantive inaccuracy, or injustice warranting removal of the fitness report. After reviewing enclosures (1), (4), and (7), and reference (b), the Performance Evaluation Review Board (PERB) determined that the contested fitness report be retained as filed. See enclosure (8) CONCLUSION Upon review and consideration of all the evidence of record, the Board determined that Petitioner’s request warrants relief. In reaching its conclusion, the Board noted substantial evidence that justified Petitioner’s request for corrective action. With regard to the Range incident, the Board noted that the LCpl’s Engineer Platoon was attached to Petitioner’s Battalion just six days prior to the tragic training incident. The Board also determined that Petitioner submitted compelling arguments of specific Operational Risk Management actions taken while leading up to the live-fire incident, as well as documentation of the actions deemed to consist of willful negligence by the shooter that were outside of Petitioner’s direct control. Especially compelling was Petitioner’s rebuttal to the 8 November 2017 Page 11 counseling, and his 30 November 2017 response to the ROM. The Board found it important that Petitioner was counseled concerning misconduct for violation of Article 92, Uniform Code of Military Justice. Specifically, two specifications of dereliction in the performance of his duties, and that his RO graded Petitioner’s professional abilities as “unsatisfactory” on the contested fitness report, yet he was not relieved of Command, he was not subject to nonjudicial punishment or courts-martial, and he was not required to show cause before a BOI. In fact, even after the Range incident, Petitioner deployed with his Battalion to and numerous locations in . The Board also found it important that Petitioner’s RS, who, purportedly had significantly more direct observation of Petitioner and his Battalion during the reporting period, and who had full access to the Range CI, did not deem the contested fitness report to be adverse, as opposed to his RO, who did not personally observe Petitioner or his Battalion during a single exercise or field training event during the six-month deployment. With regard to the Request Mast issue, a separate issue from the Range incident, the Board noted that Petitioner purportedly took immediate action to protect the Marine’s health, but failed to execute his (Petitioner’s) administrative duties at the conclusion of those immediate actions. Moreover, the CI revealed that the only substantiated hazing incident occurred in 2015, and the responsible Marine was held accountable and spent a significant amount of time in confinement. Additionally, the Board found Petitioner’s assertion credible that there was no substantiated equal opportunity violations that occurred at the time of Request Mast or prior to the Request Mast. The Board determined that this issue may have, at most, warranted a non-punitive letter of caution, but that it did not warrant a Page 11 counseling entry or an adverse fitness report, especially when considering Petitioner’s sustained superior performance over the course of his Marine Corps career. RECOMMENDATION In view of the above, the Board recommends the following corrective action: Petitioner’s naval record be corrected by removing enclosure (2), his Page 11 counseling entry of 8 November 2017, and the corresponding rebuttal. Petitioner’s naval record be corrected by removing enclosure (3), his Page 11 counseling entry of 17 November 2017, and the corresponding rebuttal. Petitioner’s naval record be corrected by removing enclosure (4), his Page Fitness Report for the reporting period 6 June 2017 to 21 December 2017. Petitioner’s naval record be corrected by removing enclosure (5), the 23 July 2018 Headquarters Marine Corps Routing Sheet and attached correspondence. 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. The foregoing action of the Board is submitted for your review and action. 4/27/2021 Assistant General Counsel (Manpower and Reserve Affairs): Reviewed and Approved Board Recommendation (Grant Relief) Reviewed and Approved Advisory Opinion Recommendation (Deny Relief) 4