DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

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.    
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your applications on 27 August 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 applications, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations, and policies.   
 
The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined 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 13 June 2012 Administrative Remarks (Page 11) 6105 counseling entry and rebuttal statement.  The Board considered your contention that a biased investigation based on a coerced written statement resulted in the counseling entry.  The Board also considered your contention you were never read your Article 31, Uniform Code of Military Justice (UCMJ) rights when initially questioned by the Company First Sergeant and therefore your admission was unjustly considered because, after you were read your Article 31 UCMJ rights a week later, you never provided an official statement.  The Board also considered your contention that “if there had been an incident of sexual harassment, a case should have been opened and submitted” but, because the “charges were false,” you requested special court-martial.  You further contend the court-martial did not take place due to lack of evidence and the subsequent Page 11 6105 counseling entry was “an act of reprisal.”  
 
The Board did not consider your request to remove your fitness report for the reporting period 1 April 2012 to 7 September 2012 because you did not first exhaust the available administrative remedy—the Marine Corps Performance Evaluation Review Board—before petitioning the Board.   
 
The Board noted that the purpose of Article 31 rights is to dispel a service member’s inherent compulsion to respond to questioning from a superior in rank or position.  UCMJ Article 31 rights are designed to protect a member from being compelled to make a statement.  Should a violation of UCMJ Article 31 occur, the appropriate remedy is that the statement would not be admissible against the member during a court-martial.  The Board, noting punitive action at court-martial was not taken against you, determined there was insufficient evidence of an error or injustice in the use of your initial statement and the resultant counseling entry.  The Board also determined there was insufficient evidence the investigation was biased or “an act of reprisal.” 
 
By signing the 13 June 2012 Page 11 6105 counseling entry, your Commanding Officer indicated he believed the preponderance of the evidence supported the findings in the investigation and subsequent counseling entry.  The Board thus determined the issuing officer was well within his discretionary authority to issue the counseling entry, and the entry met the 6105 counseling requirements detailed in MCO 1900.16 (MARCORSEPMAN).  Specifically, the Board noted that the entry provided written notification concerning your deficiencies, specific recommendations for corrective action indicating any assistance available, a comprehensive explanation of the consequences of failure to successfully take the recommended corrective action, and a reasonable opportunity to undertake the recommended corrective action.  You were afforded the opportunity to rebut the counseling, and your rebuttal is filed in your official military personnel file.  The Board thus concluded the Page 11 entry does not constitute probable material error or injustice warranting removal from your record. 
 
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, 

8/31/2021
Deputy Director