DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5348-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 1610.7 (PES) Encl: (1) DD Form 149 w/attachment (2) CMC memo 1610 MMRP-13/PERB of 18 Jul 18 1. Pursuant to the provisions of reference (a), Petitioner, a non-commissioned officer of the Marine Corps, filed enclosure (1) with this Board, requesting that his fitness report for the reporting period 31 March 2015 to 31 March 2016 be removed from his record. 2. The Board reviewed Petitioner' s allegations of error and injustice on 13 August 2019 and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence of record. As noted below, the Executive Director generally concurs with the Board, but believes that some relief is appropriate. Documentary material considered by the Board consisted of Petitioner's application, together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies, as well as the enclosed 18 July 2018 advisory opinion (AO) from the Marine Corps Performance Evaluation Review Board (PERB), which was previously provided to Petitioner. Although Petitioner was afforded an opportunity to submit a rebuttal to the AO, he did not do so. 3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice, found that, before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. BOARD CONCLUSION: The Board determined that the evidence was insufficient to establish the existence of probable material error or injustice. The Board considered Petitioner's request to remove his fitness report for the reporting period 31 March 2015 to 31 March 2016. The Board considered Petitioner's contentions that there was a lack of substantiating documentation in his official military personnel file (OMPF), no 6105 Page 11 counseling entry was ever issued, he did not make a false statement to the judge presiding over his state-court divorce proceedings, and he did not have an inappropriate relationship with a female co-worker. The Board noted that, on 3 December 2015, in a state court, Petitioner was convicted of contempt of court for lying to the judge presiding over his divorce proceedings regarding his possession of weapons. As a result, Petitioner served 48 hours in jail. This incident was documented in the contested fitness report, which also documented that he was formally counseled regarding an inappropriate relationship with a female co-worker. The Board noted Petitioner's contention that he misinterpreted the judge's question regarding his possession of weapons. The Board noted that the contested report states that Petitioner received a 6105 Page 11 counseling entry for these incidents, and that the report's adversity was based, in part, on unspecified derogatory material documenting the incidents, and upon disciplinary action documented in the 6105 Page 11 entry. The Board also noted that, because the 6105 Page 11 entry mentioned in the contested fitness report is not in Petitioner's official military personnel file (OMPF), the PERB took corrective action by redacting from the report the Section F, Item 3 justification "Directed Comment, Section F, Item 3: SNM received a 6105 counseling on 21 October 2015 for violation of Article 107 (False Official Statement) and for inappropriate relationship with a female service member."; the Section I comment "Directed Comment, Section A, Item 5A: This report is adverse due to multiple negative incidents during the reporting period. SNM received a 6105 and was found in contempt of court for lying to a Judge in , ."; and the Section I Addendum Page comment "Section A, Item 6c: SNM received 6105 counseling on 21 October 2015 for violation of Article 107 (False Official Statement) and for inappropriate relationship with a female service member." The Board considered Petitioner's contentions. The Board noted, however, that the record contains no evidence, and Petitioner submitted none, to show that he did not make a false statement or have an inappropriate relationship. Also, the Board concurred with the PERB, noting that, as modified by the PERB, the contested fitness report is no longer in error. The Board thus concluded that the report, as modified by the PERB, should remain in Petitioner's record. BOARD RECOMMENDATION: That Petitioner's request for additional correction to his record be denied, and that no further corrective action be tak n. EXECUTIVE DIRECTOR CONCLUSION: Generally concurring with the findings of the Board, the Executive Director nevertheless found that additional corrective action is warranted in Petitioner's case, in consideration ofreference (b). Like the Board, the Executive Director concurred with the PERB's modification of the contested report. The Executive Director disagreed, however, with the Board's recommendation that no further corrective action be taken. In this regard, the Executive Director noted that no derogatory material exists to support the mark in Section A, Item 6b of the contested report. Accordingly, the Executive Director concluded that the mark in Section A, Item 6b of the report must be removed. (As modified by the PERB, the report contains a directed comment explaining that Petitioner was found in contempt of court and sentenced to 48 hours in jail. The report thus properly describes the disciplinary action supporting the mark in Section A, Item 6c.) In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: That the mark in Section A, Item 6b ("Derogatory") of the report, as modified by the PERB, be removed. That no further corrective action be taken. 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. The foregoing action of the Board is submitted for your review and action.