Docket No: 5173-20 

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). The AO was provided to you on 10 September 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration.   
 
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 8 January 2019 Report of Substandard Performance of Duty and all adverse material associated with your Board of Inquiry (BOI).  You also request to be retired with 15 years of service or reinstatement to active duty with a special selection board (SSB).  The Board considered your contentions that: 1) the outcome of your BOI would have been less severe if your legal defense had presented statements to corroborate that you never made any rants or displayed any racist behaviors; 2) the basis of the allegations for substandard performance was based on the unmitigated testimony of two individuals; 3) your BOI did not substantiate misconduct for one count of Article 133; 4) your separation by substandard performance was an unjust application of justice considering that the most egregious allegations were based on the statements of two individuals and a collection of minor infractions that did not warrant an adverse report.  You claim that over the course of 15 years on active duty, you had no adverse fitness reports or material, your reporting senior (RS) believed your behavior as executive officer was due to your divorce, he did not think your actions warranted adverse material, and the allegations of substandard performance while assigned as the executive officer covered a period of less than a year following a significant and traumatic divorce while attempting to balance life post marriage and single-fatherhood.  As evidence, you furnished temporary assignment orders, which you claim, suggest that you were not physically present to make the remarks. 
 
The Board, however, substantially concurred with the AO that you have not shown that the inclusion of your Report of Substandard Performance of Duty was in error or unjust.  In this regard, the Board noted your Report of Substandard Performance of Duty, the details of your alleged misconduct, and the unanimous BOI findings that a preponderance of the evidence substantiated allegations of substandard performance of duty for failing to demonstrate acceptable qualities of leadership required by an officer, and your BOI’s recommendation that you be separated from naval service with General (Under Honorable Conditions) characterization of service.  The Board also noted that the Deputy Commandant, Manpower and Reserve Affairs (DC, M&RA) reviewed all endorsements and determined that your substandard performance demonstrates that you have no potential for future service, your substandard performance significantly outweighs the positive aspects of your career, and recommended that you be separated with an Honorable characterization of service and separation code GHKl-Substandard Performance.  The Board determined that based upon your substantiated substandard performance, your chain of command processed your Report of Substandard Performance of Duty according to regulations.  Moreover, the DC, M&RA, as the designated Show Cause Authority for the Marine Corps, appropriately acted within his discretionary authority by directing that your adverse material be included in your record according to Title 10 U.S.C. § 615.  On 28 May 2020, the Assistant Secretary of the Navy (ASN), Manpower and Reserve Affairs (M&RA), also acted within his/her discretionary authority by approving your separation.   
 
Concerning your contention that your legal defense was insufficient during your BOI, the Board determined that your personal counsel had the discretion to choose his/her strategy during your BOI.  The Board also determined that your BOI considered your evidence and testimony, and weighed its credibility to arrive at a decision based on a preponderance of the evidence.  The Board acknowledged your statement and character statements.  However, the Board found that there was insufficient evidence supporting your contention that your BOI did not conduct a fair and impartial hearing.   
 
Concerning your contention that the basis for your allegations were based upon the testimony of two individuals, the Board noted that your misconduct involved behavior that occurred over a two year period, while assigned as the Operations Officer and Executive Officer.  The Board also noted that your behavior included: (a) making derogatory comments in front of junior officers and enlisted Marines concerning certain political viewpoints, such as the role of women in society, homosexuals, "non-whites," and Muslims; (b) you persisted in discussing your personal life and romantic pursuits with subordinates; (c) you used a Second Lieutenant to fill a personal need for babysitting services; (d) you gave a female enlisted Marine a sexually charged nickname; and (e) you created a hostile working environment for a female Second Lieutenant by making inappropriate sexual comments and by changing clothing in her line of sight.  The Board determined that your chain of command and BOI members had sufficient evidence to support their finding of substandard performance. 
 
Concerning your contention that your separation was an unjust application of administrative action, the Board noted that the DC (M&RA) considered your service record and performance prior to your misconduct.  However, he determined that your misconduct outweighed your previous performance.  The Board found no errors in the processing of your administrative separation.  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 there was insufficient evidence to overcome this presumption.   
 
Regarding your request for retirement at 15 years, the Board noted that MARADMIN 135/19 provides that Marines eligible for the Marine Corps Temporary Early Retirement Authority (TERA) Program must meet one of the following criteria:  1) in conjunction with waiving Physical Evaluation Board findings, 2) denied reenlistment due to force shaping, or 3) hardship.  Additionally, you must not be pending legal action, legal proceedings, administrative separation, or disability evaluation.  The Board determined that you were not eligible at for TERA at the time of your separation and based upon the fore going determinations, the Board found no grounds for your reinstatement to active duty or a special selection board.  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