Docket No: 5108-20 
   

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 application on 8 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 application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, as well as the 1 September 2020 advisory opinion (AO) furnished by the Marine Corps Office of Legal Counsel (JPL) and your response. 
 
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. 
 
The Board carefully considered your request to remove your 11 April 2019 Report of Misconduct (ROM) and all associated documents.  The Board considered your contentions that: 1) the allegation that there was a perception of favoritism because of the relationship between you and a subordinate, formed the basis for your ROM, when the relationship was in fact “professionally based and mission-focused” as described by the Commanding General,  in his endorsement of the ROM; 2) the allegations did not rise to the level of misconduct and you were not subjected to disciplinary action; 3) you were issued a non-punitive letter of caution (NPLOC) that was meant to stay with the unit and not follow you, but, the NPLOC led directly to your ROM, which has served as punishment, depriving you of promotion and command opportunities; 4) the subordinate officer did not received any disciplinary actions, and the fact that you were the only member to receive adverse material was unfair and unjust. You also contend that the investigating officer (IO) created a hostile atmosphere, and there was a wide-spread subculture of gender bias. 
 
You cited Board cases 2037-16, in which the Board granted relief because Petitioner’s associated fitness report and page 11 were contradictory and Board case 6094-13, in which the Board granted relief because a revocation letter and two page 11 entries were issued in the absence of substantiated misconduct).  You argue that your ROM has served as punishment, hindering your future career progression.  You claim that while the Command Inspector General (CIG) investigation substantiated the allegations, the CG, stated that the second allegation was not misconduct and there was nothing more than a perception of an unduly familiar relationship.  You also claim that you did not have an unduly familiar relationship with the subordinate officer, this was affirmed by the CG, , there was a perception of an unduly familiar relationship, however, perception was not reality, and the CG,  had various punitive options, but chose a NPLOC.  
 
The Board, however, substantially concurred with the AO that you have not shown that the inclusion of your ROM was in error or unjust.  In this regard, the Board noted that the CIG inspection substantiated the allegation of an unduly familiar relationship with a subordinate officer.  The Board also noted the CG,  statements, “I concur that the relationship was unduly familiar. . .” and “I find that the substantiated allegation warrants this report, I have adjudicated the misconduct via administrative measures.”  The Board determined that regardless of the CG’s opinion, he ultimately determined that your relationship with a subordinate officer was “unduly familiar”, “caused the command climate to suffer”, and your misconduct warranted a NPLOC.  The Board noted, too, that according to the Marine Corps Manual for Legal Administration (LEGADMINMAN), the General Court Martial Convening Authority (GCMCA) “must decide on an appropriate disposition and forward the case to the Alternate Show Cause Authority’ when the GCMCA finds that misconduct occurred.  The LEGADMINMAN also provides that a NPLOC does not become part of an officer’s official military personnel file (OMPF).  However, “such action shall be documented in a Report of Misconduct with the following language, ‘SNO’s misconduct was addressed via administrative measures.’”  The Board also determined that based upon your substantiated misconduct, your chain of command processed your ROM according to regulations.  Moreover, the Deputy Commandant Manpower and Reserve Affairs (DC, M&RA), as the designated Show Cause Authority for the Marine Corps reviewed your ROM and all endorsements, and acting within his discretionary authority, directed that your adverse material be included in your record according to Title 10 U.S.C. § 615.  
 
Concerning your contention that your ROM served as punishment and has deprived you of promotion and command opportunities, the Board noted that you were afforded due process, you submitted matters on your behalf, your matters were reviewed and addressed by the first general officer in your chain of command, the Show Cause Authority concurred that your ROM was appropriately issued, and he directed that your ROM be included in your record.  The Board determined that the issuance and inclusion of your ROM was both a statutory and regulatory requirement.  The Board also determined that your statement and associated documents are available for selection boards to consider, and the impact of those documents on your future career opportunities is not a basis to remove your ROM. 
 
Concerning your contention that it was unjust that the subordinate officer did not receive any disciplinary actions, the Board determined that the subordinate officer had no recourse to limit her interactions with a superior officer and the fact that she was not subject to the same exact “punishment” you received does not constitute an injustice.  
 
Concerning your reference to Board cases 2037-16 and 6094-13, the Board noted that case 2037-16 involved performance related documents and determined that the circumstances of your case are not similar.  The Board also noted that case 6094-13 involved actions that were unsubstantiated, contrary to your case, your misconduct was substantiated by a CIG investigation, and your chain of command concurred that your relationship with a subordinate officer was unduly familiar.  The Board determined that the Board decisions regarding the aforementioned cases does not impact the fact that the processing of your ROM was justified and mandatory.    
 
Concerning your contentions that the investigation was based on perception and not actual misconduct, the IO created a hostile atmosphere, and there was a wide-spread subculture of gender bias, the Board noted your supplemental statement, response to the AO and evidence. However, the Board found no evidence of bias or that the investigation was in error, and you provided none.  The Board also noted that the CG,  considered your matters regarding the investigation and determined that the CIG conducted the investigation in a fair and impartial manner.  Moreover, the Board is not an investigative body and relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharge their official duties.  The Board found that the evidence you provided was insufficient to overcome this presumption.  Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action.  
 
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, 
 
6/21/2021
Executive Director