Docket No: 667-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) Title 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) NAVMC 10132 Unit Punishment Book of 29 May 19 (3) NAVMC 118(11) Administrative Remarks 6105 of 29 May 19 (4) NAVMC 118(11) Administrative Remarks of 29 May 19 (5) Administrative Discharge Board Report of 26 Sep 19 (6) HQMC memo 1070 JPL of 11 Mar 20 1. Pursuant to the provisions of the reference, 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 unit punishment book (UPB)/non-judicial punishment (NJP) and Administrative Remark (page 11) entries from his official military personnel file (OMPF). Petitioner also request that restoration of his grade (E-4) effective 1 August 2018 and payment of back pay from 1 May 2019 to present. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 2 March 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 that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board made the following findings: a. On 3 May 2019, Petitioner tested positive for oxymorphone. b. On 29 May 2019, Petitioner received NJP for violation of Article 112(a), Uniform Code of Military Justice (UCMJ). Petitioner was found guilty and awarded reduction to E-3. c. On 29 May 2019, Petitioner was issued enclosure (3), a 6105 page 11 entry documenting his NJP and notifying him that he is “being processed for the following judicial or adverse administrative actions: Drug Abuse.” d. On 29 May 2019, Petitioner was issued enclosure (4) a page 11 entry notifying him that he is not recommended for promotion to corporal for 18 months due to his NJP. e. On 26 September 2019, enclosure (5) Petitioner’s Administrative Discharge Board unanimously found that the preponderance of the evidence did not prove any the acts or omissions alleged and recommended that he be retained. f. Petitioner contends that he pled not guilty at NJP and his administrative separation board concluded that there was no basis to separate him for substance abuse. g. In enclosure (6), the advisor opinion (AO) noted that Petitioner had the opportunity to consult with an attorney prior to his NJP, Petitioner accepted NJP and did not appeal his commanding officer’s (CO’s) determination that he was guilty. The AO also noted that despite Petitioner’s plea, his CO found by a preponderance of the evidence that Petitioner wrongfully used a controlled substance. The AO explained that administrative separation hearings and NJP are distinct processes that serve different purposes, thus the outcome of the administrative separation board does not dictate the outcome of the NJP. The AO also explained that according to the Marine Corps Individual Records Administration Manual (IRAM), a command should not make entries on page 11, which concern administrative discharge if they do not, upon final review, result in discharge. The AO determined that Petitioner’s 29 May 2019, 6105 page 11 entry referencing “adverse administrative actions” should be removed. Additionally, because Petitioner’s NJP was valid, the AO concluded that there is no basis to reinstate his grade to E-4 or to pay back pay. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial corrective action. The Board substantially concurred with the AO that Petitioner’s NJP was valid and his page 11 entry referencing adverse administrative actions should be removed. In this regard, the Board noted that Petitioner was properly notified of his Article 31, UCMJ rights, he was afforded the opportunity to consult with a military lawyer, he accepted NJP, was afforded the right to appeal the NJP, and he elected not to appeal the commanding officer’s (CO’s) decision. The Board determined that the CO’s finding of guilt during NJP was just and within the CO’s discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2016 ed.). The Board also noted that Petitioner’s administrative separation board unanimously found that the preponderance of the evidence did not support the allegation, and recommended his retention in the Marine Corps. Accordingly, the Board determined that according to the IRAM, enclosure (3), Petitioner’s 29 May 2019 page 11 entry referencing adverse administrative actions shall be removed. Based upon the foregoing, the Board also determined that because Petitioner’s NJP was valid, there is no basis to remove enclosure (4), his 29 May 2019 page 11 entry not recommending him for promotion, to reinstate his grade to E-4, or to provide any back pay. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by removing enclosure (3), his 29 May 2019 Administrative Remarks (page 11) 6105 entry. No other changes to Petitioner’s 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-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.