Docket No: 770-20
Ref: Signature Date              
             
 
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 30 March 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 12 February 2020 advisory opinion (AO) furnished by the Marine Corps Office of Legal Counsel (JPL) and your response. 
 
The Board carefully considered your request to remove your 13 March 2019, Administrative Remarks (page 11) 6105 counseling entry.  The Board considered your contentions that: (a) your rights were violated in the name of expedience; (b) on 31 January 2019 you invoked your right not to make a statement and to consult with counsel before providing a statement; (c) on 1 February 2019 you contacted the Legal Service office, but you were unable to speak with counsel because all defense attorneys were out of the office until 12 February 2019; and on 4 February 2019 the Investigating Officer (IO) submitted the Preliminary Inquiry (PI) report to the Inspector-Instructor (I&I); (d) your Commander and the IO used your silence as a presumption of guilt, the IO ignored the fact that access to counsel was delayed and processed his report before you were able to consult with a lawyer, and your preliminary inquiry noted that you invoked your rights and refused to make a statement; (e) the IO and an unidentified witness began harassing and threatening you to participate in the investigation; and (f) according to the Manual of the Judge Advocate General (JAGMAN), your Commander could have granted an extension. 

The Board, however, substantially concurred with the AO that your page 11 entry is valid.  In this regard, the Board noted that pursuant to the Marine Corps Separation and Retirement Manual, you were issued a 6105 page 11 entry counseling you for creating an offensive working environment and committing act(s) of substantiated sexual harassment.  The Board also noted that pursuant to the Marine Corps Individual Records Administration Manual (IRAM), you were properly counseled and determined that the contested entry was written and issued according to the IRAM.  Specifically, the entry provided written notification concerning your deficiencies, specific recommendations for corrective action, where to seek assistance, the consequences for failure to take corrective action and it afforded you the opportunity to submit a rebuttal.  Moreover, your Commander found that the evidence provided by the members of your unit was sufficient to conclude that you created an offensive working environment, your Commander signed the entry and determined that your misconduct should be documented, as it was his right to do.   
 
Concerning your Article 31, UCMJ rights, the Board substantially concurred with the AO that your rights were not violated.  In this regard, the Board noted that Article 31, UCMJ rights are designed to protect you from being compelled to make a statement and do not protect your right to make a statement.  The Board also noted that you were not the subject of a court-martial or other judicial proceeding and thus determined that there no violation of your rights or due process occurred.  Moreover, your Commander’s conclusion that misconduct occurred and that your misconduct was a matter essential to document was sufficient justification to issue your page 11 entry.  Additionally, your Commander was not required to delay the investigation while you sought counsel to determine that a 6105 counseling was appropriate.   
 
The Board also considered your response to the AO, however, the Board determined that your page 11 entry sufficiently documented your misconduct according to the IRAM.  The Board determined that your contention regarding the date of your entry is an administrative error and does not invalidate the entry.  The Board found no evidence that you were harassed, that your decision not to make a statement was used against you, or that the conduct of your PI was flawed or otherwise in error and you provided none.  Accordingly, the Board concluded that there is no probable material error, violation of due process, 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,