DEPARTMENT OF THE NAVY 

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


Docket No: 8338-16 
FEB 15 2017 

From: Chairman, Board for Correction ofNaval Records 
To: Secretary ofthe Navy 

REVIEW OF NAVAL RECORD OF 
Ref: (a)lOU.S.C.1552 

Encl: (1) DD Form 149 with attachments
(2) Case summary 
(3) Subject's naval record (excerpts) 
(4) HQMC memo 1070 JPL dtd 26 Sep 16 

1. Pursuant to the provisions of the reference, Petitioner, a commissioned officer of the Marine 
Corps, filed enclosure (1) with this Board requesting removal from his record the Commanding 
General, Marine Corps Forces, Central Command Forward letter 1920 SJA dated 2 May 2015, 
Report ofMisconduct, and all corresponding derogatory material from his Official Military 
Personnel File (OMPF). Enclosures (1) through (4) apply. 

2. The Board, consisting of , reviewed Petitioner's 
allegations oferror and injustice on 27 January 2017, 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, naval records, and 
applicable statutes, regulations, and policies. In addition, the Board considered the advisory 
opinion (AO) furnished by Headquarters, Marine Corps (JPL) dated 26 September 2016 as well 
as Petitioner's rebuttal statement dated 28 September 2016. 

3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of 
error and injustice finds as follows: 

a. Before applying to this Board, Petitioner exhausted all administrative remedies available 
under existing law and regulations within the Department of the Navy. 

b. Enclosure (1) was filed in a timely manner. 

c. Petitioner was the subject of a Command Investigation (CI) regarding allegations of 
sexual harassment. The CI substantiated the sexual harassment allegation and consequently, he 
was issued an adverse fitness report for the reporting period 15 June 2014 to 27 April 2015. 
Additionally, a Report ofMisconduct and related adverse material was entered into Petitioner's 
OMPF. In response to the Report ofMisconduct, Petitioner submitted a statement and stated, in 
part, that he did not sexually harass the alleged victim or commit any other misconduct. Rather, 
he conducted an on-the-spot counseling regarding the individual's rumored inappropriate 
relationship with a married Marine corporal. He further admitted regret for the method in which 
he counseled the individual, and noted that he should have handled the matter through the chain 
ofcommand. Administrative separation processing was not required because Petitioner did not 
threaten or attempt to influence the victim's career or job for sexual favors, offer awards in 
exchange for sexual favors, or physically contact her in a sexual nature. 

d. The FY16 USMC Chief Warrant Officer, W3 Promotion Selection Board convened on 
11August2015. Petitioner was considered as an eligible in-zone officer. He was not selected 
for promotion and incurred a failure of selection (FOS). On 29 February 2016, the Performance 
Evaluation Review Board (PERB) removed the adverse fitness report for the reporting period 
15 June 2014 to 27 April 2015. On19 July 2016, the BCNR removed the FOS he incurred from 
the FY16 Promotion Selection Board. 

e. The AO recommended that Petitioner's request to remove the derogatory material from 
his OMPF be denied. The AO stated that the adverse material is based only on his substantiated 
misconduct when he sexually harassed an individual by engaging her in an unwelcomed 
conversation that was sexual in nature and impacted the work environment. 

f. In his application to the BCNR, Petitioner contends, in part, that the adverse fitness report, 
Report ofMisconduct, and associated derogatory material in his OMPF led to his FOS. He 
stated that because the PERB removed the adverse report and the BCNR removed his FOS, all 
derogatory material for which the basis of the adverse report was written, should also be 
removed from his record. In his rebuttal to the AO, Petitioner contends that a denial of his 
request would promote a "zero defect" mentality, promotes infidelity and violation of the 
Uniform Code ofMilitary Justice (UCMJ), and creates an environment where leaders are afraid 
to step in and prevent these violations. He further states that he confronted a case ofadultery and 
violation oforders in a frank and direct way, which led to an allegation of sexual harassment. He 
states that the staff had knowledge ofthe adulterous relationship, but he was the only person to 
address the issue, and he was punished for trying to do the right thing. 

CONCLUSION: 

Upon review and consideration ofall the evidence ofrecord, the Board concludes that 
Petitioner's request warrants relief in the form ofremoving from his record, the Report of 
Misconduct, and all corresponding derogatory material from his OMPF. In this regard, the 
Board believes that this case demonstrates an injustice and error. The Board did not agree with 
the AO that the Petitioner's contentions lack merit. Specifically, the AO did not consider 
substance and misconstrues the standard for "sexual harassment." The Board believed that the 
Petitioner conducted a counseling concerning violation oforders and the UCMJ, and that it was 
not a sexual discussion. Further, harassment has an objective and subjective component. The 
Board feels that the conduct described and substantiated does not adversely reflect on the 
applicants mental, moral, or professional qualifications. In fact, it was appropriate to address and 
support conformance with orders and the Secretary ofthe Navy and Department ofDefenses' 
policy on sexual assault prevention and response. 

In view ofthe above, the Board directs the following corrective action. 

RECOMMENDATION: 

a. That Petitioner's naval record be corrected by removing the Commanding General, Marine 
Corps Forces, Central Command Forward letter 1920 SJA dated 2 May 2015, Report of 
Misconduct, and all corresponding derogatory material from his Official Military Personnel File 
(OMPF). 

b. That any material or entries inconsistent with or relating to the Board' s recommendation be 
corrected, removed or completely expunged from Petitioner's record and that no such entries or 
material be added to the record in the future. 

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 ofthe Board's proceedings in the above entitled matter. 
Recorder 

5. The foregoing report ofthe Board is submitted for your review and action. 
 

Executive Director