BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6329-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) 10 U.S.C. § 1552 (b) SECNAVINST 1420.2B, Frocking of Commissioned Officers, 30 October 2018 Encl: (l) DD Form 149 w/attachments (2) Memo, subj: Preliminary Inquiry into the Facts and Circumstances Surrounding Allegations of Officer Misconduct involving [Petitioner], 5 December 2014 (3) Memo 5800 S-1, subj: Preliminary Inquiry into the Facts and Circumstances Surrounding Allegations of Officer Misconduct involving [Petitioner] (First Endorsement of Enclosure (2)), 17 December 2014 (4) NAVMC 118(11), Administrative Remarks, 17 December 2014 (5) Report of Investigative Inquiry, Case #13940 (6) HQMC Memo 1440 MMDA, subj: Frocking to the Grade of Lieutenant Colonel in case of [Petitioner], 6 June 2016 (7) Memo 5000 CIG, subj: Command Investigation into Inspector General of the Marine Corps Hotline Complaint Case #17633 ICO [Petitioner], 6 June 2017 (8) CMC Memo, subj: Promotion Recommendation in the case of [Petitioner], 23 January 2019 (9) HQMC Memo 1440 MMOA, subj: Defrocking in case of [Petitioner], 25 February 2019 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (I) with the Board for Correction of Naval Records (Board) requesting that his naval record be corrected by reversing the Marine Corps' decision to rescind his frocking to Lieutenant Colonel (LtCol) and by retroactively promoting him to LtCol effective 1 June 2017. 2. The Board reviewed Petitioner's allegations of error or injustice on 6 July 2021 and, pursuant to its regulations, determined that no corrective action should be taken on Petitioner's naval record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval record, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all of the facts of record pertaining to Petitioner's allegations of error or 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. In December 2014, a Preliminary Inquiry (Pl) found evidence that Petitioner communicated with another individual in an inappropriate and sexually explicit manner. The Pl found no physical evidence of any sexual relationship, but did find that the conversations suggested the possibility of such a relationship. 1 See enclosure (2). c. By memorandum dated 17 December 2014, Petitioner's commander decided to formally counsel Petitioner pursuant to the findings of the PI, and determined that no further investigation was warranted. He directed that the formal counseling be retained in Petitioner's permanent record. See enclosure (3). On the same date, a comment was entered into Petitioner's record reflecting that he was counseled for conduct unbecoming an officer and a gentleman. Specifically, the comment stated that Petitioner, while deployed to in support of Operation Enduring Freedom from March 2014 to October 2014, "developed an intimate, personal relationship (sexually explicit communication) with a female United States Army field grade officer who was not [his] wife." It further stated that Petitioner's subordinates perceived his relationship with the woman to exceed the bounds of professional interaction, which resulted in their loss of trust in Petitioner as a leader. This contributed to a poor command climate, and directly contributed to instances of substandard performance and conduct by otherwise exceptional noncommissioned officers assigned to Petitioner's team. Finally, the comment stated that Petitioner's commander had lost confidence in Petitioner's ability to lead Marines again in combat as a result of his conduct. See enclosure (4). d. In early 2015, a command investigation (Cl) found insufficient evidence to substantiate allegations made in an anonymous Inspector General complaint that Petitioner engaged in an inappropriate relationship with his unit's Family Readiness Officer (FRO) between March 2014 and January 2015 . e. Petitioner was subsequently selection for promotion to LtCol by the Fiscal Year (FY) 2017 USMC LtCol Promotion Selection Board (PSB). His effective date of rank to LtCol pursuant to his selection by the FY 2017 USMC LtCol PSB would have been l June 2017. By memorandum dated 6 June 2016, Headquarters, Marine Corps (HQMC), approved a request to frock Petitioner to the rank of LtCol effective no earlier than 6 June 2016. See enclosure (5). f. On or about 18 March 2017, the Inspector General of the Marine Corps (IGMC) received an anonymous "hotline" complaint alleging violations of the Uniform Code of Military Justice (UCMJ) by Petitioner while he was in various assignments dating back to October 2014. Specifically, the anonymous complaint alleged that Petitioner engaged in adultery in violation of Article 134, UCMJ; conduct unbecoming an officer and a gentleman in violation of Article 133, UCMJ; depositing or causing to be deposited obscene matters in the mail, electronic or otherwise, in violation of Article 134, UCMJ; and potentially "other sexual misconduct" in violation of Article 120c, UCMJ. The anonymous complaint also included allegations of adultery and fraternization dating back to the period from 2003 to 2005. See enclosure (6). 1 This Pl recommended that a formal investigation be conducted. g. On 12 May 2017, the Commanding General, , directed a CI into the allegations made in the IGMC hotline complaint. On 6 June 2017, the CI found that Petitioner fraternized with a junior enlisted female Marine while embarked aboard the in 2005, in violation of Article 134, UCMJ; that Petitioner deposited or caused to be deposited obscene matters in electronic mail, in violation of Article 134, UCMJ; and engaged in conduct unbecoming an officer and a gentleman, in violation of Article 133, UCMJ. The latter offense was substantiated on the basis of a pattern of incidents and perceptions regarding his conduct with different women while he was married, dating back to 2005. One of the perceptions discussed in the CI pertained to Petitioner's relationship with the unit FRO while he served as the XO of , which was the subject of the CI conducted in 2015 discussed above. The FRO was married to a Marine officer during this time and Petitioner worked closely with her in his role as the XO. Petitioner then married the FRO within months of her divorce from the Marine officer. During the course of the investigation, one of his supervisors from this period expressed his belief, in hindsight, that Petitioner had not been forthright regarding his relationship with the FRO. The CI found insufficient evidence to substantiate the allegations of adultery, fraternization apart from the 2005 incident, and other sexual misconduct. Based upon these findings, the investigating officer (10) recommended that Petitioner receive a punitive letter of caution and be withheld from the command that he was scheduled to assume on 6 June 2017. See enclosure (6). h. On 26 May 2017, Petitioner was notified and acknowledged that his promotion to LtCol was being delayed because of the allegations against him, and that his removal from the FY 2017 USMC LtCol Promotion Selection List was being considered. See enclosure (7). i. By memorandum dated 23 January 2019, the Commandant of the Marine Corps (CMC) recommended that Petitioner be removed from the FY 2017 USMC LtCol Promotion List, finding that the CI demonstrated the he "is not morally, professional qualified [sic] for promotion and that he has failed to demonstrate the exemplary conduct requirements of [IO U.S.C. § 5947]." The CMC concurred with the recommendation of the Commanding General that Petitioner should be removed from the promotion list based on his "history of poor judgement and intentional commission of actions that affected the morale of units in which he previously served." See enclosure (7). j. On 15 February 2019, the Secretary of the Navy removed Petitioner from the FY 2017 USMC LtCol Promotion List. See enclosure (7). k. By memorandum dated 25 February 2019, Petitioner's authorization to wear the rank of LtCol (i.e., frocking) was revoked. See enclosure (8). l. Petitioner contends a material error in that his promotion was rescinded on an improper basis. Specifically, he contends that he was denied promotion partially due to the "timing" of his relationship with his current wife. He claims that there is no concrete evidence that he was engaged in an improper relationship with the unit FRO, who is currently his wife. He further contends that the CI IO improperly relied upon the relatively short period between the FRO's divorce from her former husband and her marriage to the Petitioner to presume the existence of an improper relationship, when there was no concrete evidence that such a relationship existed prior to her divorce. He also asserts material injustice, citing to evidence provided that the allegations against him arose out of his current wife's divorce and custody dispute with her ex­ husband, as well as evidence that he asserts disproves the allegations of an improper prior relationship with his now-wife. CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Board found insufficient evidence of any material error or injustice to warrant relief. The Board is not an investigative body. In the absence of evidence to the contrary, it relies upon the presumption of regularity to establish that Marine Corps officials properly discharged their duties. In this regard, the Board had no·reason to doubt that the Marine Corps colonel who conducted the investigation and substantiated the allegation that Petitioner's conduct was unbecoming of an officer and a gentleman, properly weighed the available evidence and utilized his experience and judgment in reaching his conclusion. The Board found no error in the evidence that the IO relied upon to reach his conclusion. The IO was very careful to distinguish those portions of his findings which were based upon direct evidence and those which were based upon perceptions, thus enabling the decision makers to make informed decisions based upon his findings. The Board was not persuaded by Petitioner's contention that it was improper for the IO to rely upon his own preconceived notion of an appropriate dating period to reach the presumption that Petitioner must have been engaged in an inappropriate relationship with the FRO prior to her divorce, as it is common sense that a personal relationship that resulted in a marriage likely did not start and develop over the very short period between the FRO's divorce and remarriage to the Petitioner. Further, the IO clearly did not rely solely upon the timing of Petitioner's current marriage, as the CI discussed evidence of perceptions of this relationship from the time in question. As the Board is not an investigating body, Petitioner's contentions that his former commanding officer slandered him during the course of the investigation were not persuasive. The Board presumes that the IO applied appropriate judgment in weighing the credibility and potential biases of the witnesses. The Board also had no reason to question whether the CMC and SECNAV properly weighed the evidence, including the matters that Petitioner submitted in response to the allegations against him, in reaching the conclusion that he should be removed from the FY 2017 USMC LtCol Promotion List. The Board also notes that the decision to remove Petitioner from the FY 2017 USMC LtCol Promotion List was based upon more than the possibility that he was engaged in an improper relationship with the woman who is now his spouse while she was married to another service member. Petitioner focuses exclusively upon the validity of the perceptions regarding his relationship with his current spouse, but the CI upon which his removal was based also substantiated that Petitioner previously fraternized with an enlisted female Marine and that Petitioner admitted to maintaining a potentia11y unduly familiar relationship over several years with two married civilian women. The perceptions regarding Petitioner's relationship with the woman who is now his wife was only one of a pattern of incidents and perceptions that the IO relied upon to find that Petitioner's conduct over the years had been unbecoming of an officer and a gentleman. The Board found no fault in the IO's conclusion based upon the evidence his cited in the Cl. The Board found no merit in Petitioner's contention that the CMC's recommendation to the SECNAV that Petitioner be removed from the FY 2017 USMC LtCol Promotion List relied upon unsubstantiated allegations. In this regard, the Board carefully compared the CMC's recommendation at enclosure (8) with the findings of the CI at enclosure (7), and did not find any substantive discrepancy between what was reported to SECNAV and what was substantiated in the CI. The CMC's recommendation listed the allegations made in the IGMC hotline complaint, many of which were unsubstantiated during the CI, but immediately thereafter accurately reported the allegations which were substantiated by the CI. Finally, the Board found no injustice in Petitioner's contention that the investigation initiated against him was the result of a vendetta by his current spouse's ex-husband. In this regard, the Board found no relevance in the motivation for the anonymous hotline complaint which initiated the Cl. It also found no evidence to support Petitioner's contention that the CI was a '"fishing expedition" to obtain information to fit the allegations. The fact that the majority of the allegations made in the hotline complaint were unsubstantiated belies this claim, and supports the conclusion that the CI findings were based upon the evidence gathered rather than upon a predetermined outcome. Finding no error or injustice in Petitioner's removal from the FY 2017 USMC LtCol Promotion List, the Board also finds no error or injustice in the decision to remove Petitioner's frocking to LtCol. In accordance with Enclosure (2), paragraph 3e, of reference (b), officers being considered for removal from a promotion list or who are being considered for promotion delay are not eligible for frocking. Once Petitioner was removed from the FY 2017 USMC LtCol Promotion List, his frocking to a grade that he was no longer selected for promotion was no longer valid. RECOMMENDATION In view of the above, the Board recommends that no corrective action be taken on Petitioner's naval record. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 8/13/2021 Executive Director SECRETARY OF THE NAVY DECISION: Board Recommendation Approve (Deny Relief) Petitioner's Request Approved (Grant Relief- Restore Petitioner to FY 2017 USMC LtCol Promotion List, and promote him to LtCol effective I June 2017) 9/7/2021 Secretary of the Navy