DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 6210-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) USPACOM Instruction 0614.1 Encl: (1) DD Form 149 w/attachments (2) Petitioner’s UPB entry of 18 Aug 17 (3) Administrative Remarks (Page 11) 6105 and promotion-restriction counseling of 18 Aug 17 (4) HQMC memo 1070 JPL (undated) 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing his 18 August 2017 non-judicial punishment (NJP). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 26 November 2019 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, relevant portions of Petitioner’s naval records, as well as 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 18 August 2017, Petitioner received NJP for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (for being absent from his unit without authority from 0800 on 28 July 2017 until 2300, 12 August 2017), Article 92 (for violating reference (b), the Theater Travel Requirements in U.S. Command, by visiting the countries of , , and without properly receiving theater or country clearance), and for two specifications of violating of Article 92, UCMJ for having knowledge of a lawful order issued by his platoon sergeant and his platoon commander to return to his unit because he was in an unauthorized absence status, an order which it was his duty to obey, but failed to obey by wrongfully boarding a cruise ship instead of returning back to his duties in . The NJP was documented in the unit punishment book (UPB) (enclosure (2)). Prior to the imposition of NJP, Petitioner was notified of his right to refuse NJP, afforded the opportunity to consult with a military lawyer before deciding to chose to accept NJP, and advised of his right to appeal the NJP. Petitioner was awarded a reduction in rank to corporal/E-4, forfeitures of pay, restriction and extra duty. The forfeitures of pay were suspended for six months, and Petitioner did not appeal the NJP. Also on 18 August 2017, Petitioner was issued enclosure (3), an Administrative Remarks (Page 11) 6105 counseling, which identified deficiencies for his violations of Articles 86 and 92, UCMJ, and promotion-restriction to sergeant. Petitioner acknowledged the counseling and did not submit a rebuttal. c. Petitioner contends that, on 8 June 2017, he requested 36 days annual leave for the period from 4 July to 11 August 2017. He asserts however, that his approved leave was modified on 22 July 2017, pending approval of his foreign travel in the Aircraft and Personnel Automated Clearance System (APACS). He also asserts that his foreign travel was approved on the 3rd of July (to ) and 14th of July (to ), and that he was not notified that he could not execute the originally approved leave dates until he was contacted the Friday of his foreign travel leave date, and told that he was being charged with unauthorized absence. d. An advisory opinion (AO) at enclosure (4), furnished by Headquarters Marine Corps, Judge Advocate Division, Policy and Law Branch (JPL) recommended that part of Petitioner’s request be approved, noting that Petitioner had met his burden to demonstrate that probable material error exists with regard to his violation of Article 92, UCMJ referring to the violation of reference (b). Specifically, the USPACOM Instruction was canceled on 5 February 2013; therefore, it was not in effect at the time of Petitioner’s travel. Moreover, the instruction was not a “punitive order” under the UCMJ. Therefore, failing to adhere to this instruction is not a violation under Article 92, UCMJ. e. Additionally, Petitioner had the appropriate approval from APACS to travel to , , and as of 14 July 2017, while already on leave. However, he waited until 29 July 2017, the day after his leave had expired, to submit an additional leave request. The AO noted that Petitioner raises error based on the grounds of ambiguity in the information messages and statements regarding making and modifying his leave request. Specifically, on 29 June 2017, the company first sergeant wrote, “Once this foreign leave travel is approved, [Petitioner] may edit this request for the original requested days, and it may be approved if it meets all requirements.” And on 3 July 2017, the battalion sergeant major wrote, “Once [Petitioner] completes the requirements for the foreign travel, he can submit a change for review by the [commanding officer] for approval.” The AO determined that these entries, included in the web-based Marine Online (MOL) system, expressly state what steps Petitioner needed to take in regards to his leave. And as previously stated, the AO noted that Petitioner’s final APACS approval was posted on the 14th of July, but he waited until the 29th of July (after his leave had expired) to submit an additional leave request, and that the errors raised by Petitioner based on ambiguity in the information messages and statements are not supported by the evidence provided. f. The AO further opined that Petitioner’s allegations that he was the subject of harassment, unprofessionalism, and manipulation by the first sergeant are without merit. As noted by the AO, Petitioner has provided no evidence that he raised these concerns at the time of his NJP, or through the use of a subsequent request mast. Petitioner accepted NJP after consultation with an attorney and chose to waive his right to appeal. Moreover, Petitioner has not provided any eye­witness statements nor testimony corroborating these claims. CONCLUSION Upon review and consideration of all the evidence, the Board concluded that, under the totality of the circumstances, Petitioner’s request warrants partial relief. In this regard, the Board noted that Petitioner was found guilty of violating instruction 0614.1, an instruction that was canceled on 5 February 2013, and therefore was not in effect at the time of Petitioner’s travel. The Board further noted that the instruction is not punitive in nature and, therefore, failing to adhere to this instruction is not a violation under Article 92, UCMJ. The Board concluded that any reference to this violation of Article 92, UCMJ specification shall be redacted from Petitioner’s UPB and Page 11 6105 counseling entry. The Board, however, determined that the remaining offenses that Petitioner was found guilty of are valid. In this regard, Petitioner was notified that his approved leave had been modified, and that once the requirements for his planned foreign travel were met, he could submit a change for review by his commanding officer for approval. Petitioner’s foreign travel was approved in APACS a full two weeks prior to the expiration of his leave. The Board noted that Petitioner failed to submit an additional leave request prior to the expiration of his approved leave, and determined that he was in an unauthorized leave status from 28 July to 12 August 2016, and that he failed to return to his command after receiving lawful orders to do so. The Board found no evidence, and Petitioner furnished none, that he was the subject of harassment, unprofessionalism, and manipulation by his first sergeant. The Board also noted that Petitioner accepted NJP after consultation with an attorney and chose to waive his right to appeal. The Board thus concluded that Petitioner’s UPB and corresponding Page 11 shall remain in his OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. That Petitioner’s naval record be corrected by redacting his UPB at enclosure (2) by redacting the following: “Violation of Article 92 (Failure to obey order or regulation) In that Sergeant , did on or about 29 July 2017 through 5 August 2017, violate INSTRUCTION 0614.1 “Theater Travel Requirements in U.S. ,” dated 5 February 2013, by visiting the countries of , , and without properly receiving theater or country clearance.” That Petitioner’s naval record be corrected by redacting his Page 11 at enclosure (3) by redacting the following: “Violation of Article 92 (Failure to obey order or regulation) In that Sergeant , did or about 29 July 2017 through 5 August 2017, violate INSTRUCTION 0614.1 “Theater Travel Requirements in U.S. Command,” dated 5 February 2013, by visiting the countries of , , and without properly receiving theater or country clearance.” 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. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. That no further relief be granted. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 9 July 2018. 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. Sincerely, 2/8/2020