From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj: REVIEW OF NAVAL RECORD OF  XXX XX USMC     
 
Ref:     (a) 10 U.S.C. § 1552 
            (b) MCO 1900.16 (MARCORSEPMAN) 
            (c) MCO P1400.32D W/CH 2 (MARCORPROMAN, VOL 2, ENLPROM) 
            (d) MCBul 5810 (30 Aug 18 ext to 31 Dec 22) 
            (e) MCO P1070.12K (IRAM) 
 
Encl:   (1) DD Form 149 w/enclosures 
 (2) UPB entry of 5 Mar 20 
 (3) Administrative Remarks (Page 11) counseling entries of 5 Mar 20  
 (4) CO, 1st MaintBn ltr 5812 CO of 10 Mar 20 
 (5) Administrative Remarks (Page 11) 6105 and promotion restriction counseling entries of 26 Mar 20 
 (6) Administrative Remarks (Page 11) regarding availability of drug and alcohol counseling and availability of PTS/TBI counseling entries of 26 Mar 20 
 (7) Administrative Remarks (Page 11) weapons possession prohibition counseling entry  of 26 Mar 20 
 (8)  ADB Report (undated)  
 
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 that his naval record be corrected by removing his 5 March 2020 nonjudicial punishment (NJP) and associated Administrative Remarks (Page 11) counseling entries, and to reverse the revocation of his Marine Corps Martial Arts Program tab. 
 
2.  The Board, consisting of Ms. , Mr. , and Ms. , reviewed Petitioner’s allegations of error and injustice on 22 July 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.  On 5 March 2020, Petitioner received NJP for violation of the Uniform Code of Military Justice, Article 112a (wrongful use of a controlled substance) after testing positive for THC on a command directed urinalysis.  Prior to the imposition of NJP, he was afforded all procedural rights.  Petitioner agreed to accept NJP subject to his right of appeal; he did not appeal.  The punishment imposed was a reduction in grade to lance corporal/E-3, forfeiture of pay, 45 days’ restriction and 45 days’ extra duties.  Enclosure (2).  Pursuant to reference (b), Petitioner’s  Commanding Officer initiated involuntary administrative separation processing.  Petitioner was granted a hearing before an Administrative Separation Board (ASB). 
 
     c.  On 5 March 2020, Petitioner was issued enclosure (3), a Page 11 with two counseling entries.  The first is a 6105 counseling, memorializing his 5 March 2020 NJP after testing positive for THC 256 mg/mL (marijuana), and notice that he was being processed for administrative separation.  The second is a promotion–restriction counseling, notifying him that he was eligible but not recommended for promotion to E-4 (corporal) for a period of 18 months in accordance with reference (c).  Petitioner acknowledged both entries and indicated that he did not intend to submit a written rebuttal.     
    
     d.  On 10 March 2020, Petitioner’s Commanding Officer revoked his Marine Corps Martial Arts Program tab due to the 5 March 2020 NJP.  Enclosure (4). 
 
     e.  On 26 March 2020, Petitioner was issued enclosure (5), a Page 11 with two counseling entries.  The first is a 6105 counseling memorializing his 5 March 2020 NJP and notice that he is being processed for administrative separation per reference (b).  The second is a promotion–restriction entry, notifying Petitioner that he is eligible but not recommended for promotion to E-4 (corporal) due to pending administrative separation.  Petitioner acknowledged both entries and indicated that he did not intend to submit t a rebuttal.     
 
     f.  On 26 March 2020, Petitioner was issued enclosure (6), a Page 11 with two counseling entries.  The first notified Petitioner of the availability of drug or alcohol counseling through the Department of Veterans Affairs.  The second notified Petitioner of the availability of counseling should he develop any signs or symptoms of post-traumatic stress or traumatic brain injury.  
 
     g.  On 26 March 2020, pursuant to reference (d), Petitioner was issued enclosure (7), a Page 11 counseling him regarding a 12-month prohibition on weapons possession from the date of adjudication of his 5 March 2020 NJP.   
 
     h.  On 27 July 2020, Petitioner’s ASB determined by majority vote that the preponderance of the evidence did not prove any of the acts or omissions alleged in the notification of separation proceedings.  Enclosure (8).  Subsequently, Petitioner was retained on active duty.   
 
     i.  Petitioner contends that his 5 March 2020 NJP is in error, as evidenced by the ASB finding that he did not wrongfully use marijuana, and his retention on active duty. 

     j.  Per reference (e), Page 11 entries that concern administrative discharge will not remain in a member’s official military personnel file if they do not, upon final review, result in discharge or reduction. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence, the Board concluded that Petitioner’s request warrants partial relief.  In this regard, the Board determined that some of the Page 11 entries are in error, but removal would constitute an excessive degree of redress.  The Board thus determined that it is necessary to redact all verbiage regarding notification of mandatory separation processing or pending administrative separation in order for the counseling entries to comply with reference (e).   
 
With regard to Petitioner’s contention that the NJP is in error because the ASB found that he did not wrongfully use marijuana, the Board noted that the nonjudicial punishment and the administrative separation processes are separate and independent processes.  Specifically, NJP is a statutory proceeding and has numerous safeguards built in for the accused.  In the case of the Petitioner, he had the right to consult with counsel and to refuse NJP.  The record indicates that after having been informed of his rights, he opted to proceed with NJP.  Post NJP a member may request clemency from the officer who imposed NJP and may also appeal the NJP findings to the first general officer in the chain of command. There is no evidence that the Petitioner availed himself to either. 
 
The Board also noted that the administrative separation process is an administrative employment process.  The administrative separation process is not intended as, nor does it function as a method to overturn or invalidate other Navy or Marine Corps procedures or administrative actions, such as NJP.  Moreover, NJP is non-judicial, the findings, unlike those of a court are not binding upon the ASB.  Although Petitioner’s ASB did not find sufficient evidence to warrant separation from the Marine Corps, the Board determined that finding does not impact the validity of the NJP findings, and that it is conceivable and permissible that the two processes with separate considerations and purposes may arrive at different findings.   
 
The Board thus concluded that Petitioner’s Commanding Officer was well within his discretionary authority to issue the NJP and Page 11 counseling entries, and to revoke Petitioner’s Marine Corps Martial Arts Program tab. 
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Petitioner’s naval record be corrected by redacting the following from the 5 March 2020 Page 11 6105 counseling, memorializing his 5 March 2020 NJP after testing positive for THC 256 mg/mL (marijuana) (See enclosure (4)):  
 
“I understand that I am being processed for the following judicial or adverse administrative action:  Administrative Separation for Wrongful Drug Use.” 
 
Petitioner’s naval record be corrected by redacting the following from the 26 March 2020 Page 11 6105 counseling memorializing his 5 March 2020 NJP and notice that he is being processed for administrative separation per reference (b).  See enclosure (5):   
 
“I understand that I am being processed for the following judicial or adverse administrative action:  Administrative Separation per MCO 1900.16 (MARCORSEPMAN).” 
 
Petitioner’s naval record be corrected by redacting the following from the 26 March 2020 Page 11 promotion–restriction entry, notifying Petitioner that he is eligible but not recommended for promotion to E-4 due to pending administrative separation.  See enclosure (5):   
 
“. . . due to pending administrative separation . . . ” 
 
That no further relief be granted. 
 
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.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing  corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 

8/2/2021
Executive Director