From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD OF   XXX XX / USMC 
 
Ref:   (a) Title 10 U.S.C. § 1552 
       (b) MCO P1070.12K w/ ch 1 
  
Encl:  (1) DD Form 149 w/enclosures 
       (2) Administrative Remarks (Page 11) 6105 counseling entry of 13 Nov 20 
    
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 an Administrative Remarks (page 11) 6105 counseling entry from his official military personnel file (OMPF).  
 
2.  The Board, consisting of  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 16 August 2020 Petitioner arrived home from a party and got in an argument with his spouse, who called the police.  Petitioner left the home before the police arrived; Petitioner’s wife called him and told him that the police wanted to see him so Petitioner drove to the police station where Petitioner received a citation for driving while intoxicated (DWI) and agreed to a breathalyzer test.  The test revealed a blood alcohol content (BAC) of .04%, within the legal limit.  On 26 October 2020,   dropped the DWI charge.  Petitioner received enclosure (2), an Administrative Remarks page 11 on 13 November 2020 for violation of the UCMJ, Article 113, driving under the influence (DUI) and 134 (drunk and disorderly).  Petitioner submitted a rebuttal to the page 11 on 16 November 2020. 
 
      c.  Petitioner contends that the page 11 is erroneous and unjust because he was not convicted of DUI; his breathalyzer was within the legal limit, and he was not cited for drunk and disorderly conduct. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board determined that Petitioner’s request warrants partial relief.  The Board found that the page 11 entry contains erroneous language; specifically “113 (DUI) and” as there is insufficient evidence regarding the alleged violation of DUI.  The Board thus concluded that Petitioner’s page 11 at enclosure (2) shall be modified by redacting the language, “113 (DUI) and.” 
 
The Board, however, determined that the page 11 should not be expunged.  In this regard, the Board noted that a civilian court dismissal and the actions of the Marine Corps are separate and distinct and neither is dependent upon the other for legitimacy and that commanding officers are given wide discretion regarding the subject matter of a counseling per reference (b).  Consequently, the Board determined that the commanding officer had justification to counsel the Petitioner based on significant evidence from the rebuttal and the arrest.  In addition, the Board found removal of the page 11 is not warranted as the modification to the entry corrects the error.  The Board thus concluded that the page 11 entry, as modified, shall remain in Petitioner’s record.  
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Modify Petitioner’s 13 November 2020 page 11 counseling entry by removing the verbiage,  “113 (DUI) and”. 
 
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. 
     
6/15/2021
Executive Director