DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6502-16 Dear : This is in reference to your latest reconsideration request dated 6 May 2016, supplemented by your application dated 16 November 2016. You previously petitioned the Board and were advised in our letter dated 22 July 2016 that your application was disapproved. Your case was reconsidered in accordance with Board for Correction ofNaval Records procedures that conform to Lipsman v. Secretary o(Army, 335 F. Supp. 2d 48 (D.D.C. 2004). Regarding your request for a personal appearance, the Board determined that .a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence ofrecord. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 2 June 2017. The names and votes of the members of the panel will be furnished upon request. Your allegations oferror 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 ofyour application, together with all material submitted in support thereof, your naval record, and applicable statutes, regulations, and policies. You enlisted in the Marine Corps and began a period ofactive duty on 20 June 2000. On 20 May 2005, you were commissioned, and on 1June2009, you were promoted to . On 24 June 2014, a Criminal Investigation Division (CID) investigation was initiated into allegations ofperceived sexual advances toward an enlisted male Marine in your bachelor officer quarters. On 27 June 2014, the investigation was closed as unfounded, and your Executive Officer was appraised ofthe status. Based on the facts and circumstances regarding the CID investigation, you were relieved for cause and issued an adverse .Commandant ofthe Marine Corps directed (DC) fitness report (FITREP) for the reporting period 1 June 2014 to 27 June 2014. On 26 August 2014, the FY16 USMC Promotion Selection Board convened. The adverse DC FITREP was not available for consideration by the FYI 6 Promotion Selection Board when it selected you for promotion. Your selection was subsequently withheld, pending review ofthe adverse matters. On 30 October 2014, your Commanding General (CG) referred charges against you to a general courts-martial for violation ofArticle 80 (attempted abusive sexual contact), Article 93 (maltreatment of subordinates), Article 133 (conduct unbecoming an officer), and Article 134 (fraternization) ofthe Uniform Code ofMilitary Justice. On 1December2014, your CG approved a pretrial agreement whereby he would withdraw the charge for violation ofArticle 80, UCMJ, and you would voluntarily agree to plead guilty and accept nonjudicial punishment (NJP) for violation ofArticles 93, 133, and 134, UCMJ. On 16 December 2014, after being accorded all rights, you accepted the imposition ofNJP and did not demand trial by courtsmartial. You were awarded a letter ofreprimand and a forfeiture ofpay that was suspended for six months. Due to the severity ofthe misconduct, you were required to show cause for retention on active duty before a Board ofinquiry (BOI). On 23 February 2015, the BOI substantiated your misconduct, but recommended you be retained on active duty. Your chain of command concurred with the recommendation and, on 21 September 2015, the Deputy Commandant for Manpower and Reserve Affairs closed your case and directed that the adverse materials be entered into your official military personnel file (OMPF) in accordance with Marine Corps policy. On 26 May 2016, the Commandant ofthe Marine Corps (CMC) recommended that your name be removed from the FY16 USMC Promotion List, affording future promotion selection boards the opportunity to properly consider the adverse materials associated with this incident. On 2 June 2016, the Secretary of the Navy approved the CMC's recommendation and removed your name from the FYl6 USMC Promotion List. On 16 August 2016, the FY18 USMC Promotion Selection Board convened. You were considered as an eligible above-zone officer and not selected for promotion, incurring your second failure of selection. However, upon completion ofthe Promotion Selection Board, the Board reconvened as a Continuation Selection Board. Based on your years of service and having twice failed selection for promotion, you were eligible for consideration by the Continuation Selection Board and deemed by a majority ofthe members to be best and fully qualified for continuation based on the best interests ofthe Marine Corps. Your selection for continuation was subsequently withheld, and is pending review ofthe adverse matters. The Board, in its review ofyour entire record and application with supporting documentation, carefully considered your request to have adverse materials removed to a restricted area of your OMPF. The Board also considered your request to have your name restored on the FY16 USMC Promotion List. The Board considered your argument that (I) the Performance Evaluation Review Board (PERB) reviewed your case without knowledge ofthe final investigation report determining the incident as unfounded; (2) the allegations were made by a sub-standard Marine with integrity issues, and the incident is now documented in at least five different areas in his OMPF; (3) your records should be cleared ofthe adverse information because the incident warranted a verbal counseling, at most; ( 4) legal error was committed when, after the investigation was closed as unfounded, you went to a BOI, received two adverse FITREPS, and the recommendation to remove your selection included only negative matters and unfounded allegations. The Board concluded these factors were not sufficient to warrant relief, given the seriousness of your substantiated and admitted misconduct and adverse information which resulted in your removal from the FY16 Promotion List. The Board determined that your case was properly adjudicated and that no legal error occurred. The Board noted that, in accordance with Marine Corps policy, any document that reflects unfavorably upon a Marine's mental, moral, or professional qualifications is filed in the OMPF. The Board also noted that you were accorded the opportunity to contest, explain, or rebut the correspondence containing adverse material prior to its inclusion in your OMPF. The Board concluded that the requested changes to your record would be unfair to your peers, against whom you will compete for promotions and assignments. Accordingly, your application has been denied. It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously 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 ofprobable material error or injustice. Sincerely, Executive Director