Docket No.4967-20 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 applications on 10 June 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 applications, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies, as well as the 25 June 2020 decision by the Marine Corps Performance Evaluation Review Board (PERB) (the PERB Decision), and the 22 April 2020 Advisory Opinion provided to the PERB by the Manpower Management Division Records & Performance Branch (MMRP-30) (the MMRP-30 AO). The Board also considered the AO provided by the Headquarters Marine Corps Personnel Law Branch (JPL) (the JPL AO), and your 10 September 2020 rebuttal. The Board determined that your personal appearance, with or without counsel, would 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 1 June 2017 to 31 May 2018 Fitness Report, to award constructive credit in the grade of major for the amount of time necessary to qualify for retirement eligibility, and any other relief that is equitable and just. The Board considered your contention that being involuntarily discharged for sharing a video on your personal media page is an unreasonable and inequitable result. The Board considered your arguments that posting the video to your social media account was neither unbecoming an officer nor prejudicial to good order and discipline. You assert that you did not create the video, that you did not know what was in the video, and that you did not intend to offend anyone through your action of sharing the video. You also assert that the command has not provided any evidence of mens rea nor has it established that you acted recklessly with respect to ALMAR 008/17; therefore, finding that you violated ALMAR 008/17 “Social Media Guidance-Unofficial Internet Posts” in any way was erroneous and any reference to it should be removed from your fitness report. Additionally, you assert that the extreme minor nature of your oversight did not warrant a command investigation (CI), and that you were not required to show cause for retention on active duty before a board of inquiry. The Board also noted your assertion that the alleged misconduct did not impact your duty performance or make you unfit for promotion. Lastly, you argue that it is simply not equitable for the Marine Corps to deny you promotion to major, and to discharge you before retirement based on such a minor lapse of judgement. The Board, however, substantially concurred with the AOs and the PERB Decision that the report is valid as written and filed, in accordance with the applicable Performance Evaluation System (PES) Manual guidance. In this regard, the Board noted that your Commanding Officer (CO) was within his discretionary authority to direct a CI into allegations that you committed misconduct. Your CO found by a preponderance of evidence standard that you were in violation of ALMAR 008/17 on at least two separate occasions. The Board determined that your CO was well within his discretionary authority to issue you an Administrative Remarks (Page 11), counseling you on your deficiencies, which you readily admitted to in your undated written rebuttal to the 26 March 2018 Page 11 counseling entry. The Board thus concluded that because you received derogatory administrative material during the reporting period, an adverse fitness report was required per the PES Manual. With regard to your request for constructive credit in the grade of major, the Board noted that you incurred a failure of selection by the Fiscal Year 2018 USMC Major Promotion Selection Board, before the 26 March 2018 Page 11 or the contested fitness report were inserted into your official military personnel file. The derogatory material was not available for consideration when you were selected by the Fiscal Year 2019 USMC Major Promotion Selection Board, and your selection was therefore delayed in order to determine whether you were mentally, physically, morally, and professionally qualified for promotion. Ultimately, the Secretary of the Navy determined that you were not qualified for promotion, and removed your name from the Fiscal Year 2019 Promotion List. Due to your twice-passed status, and being ineligible for continuation, you were discharged from active duty on 1 June 2020 and appointed in the Marine Corps Reserve. The Board thus concluded that constructive credit in the grade of major is not warranted. 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, 6/22/21 Executive Director