Docket No. 10195-19
Ref:   Signature Date

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) Manual for Courts-Martial (2019) 
       (c) MCO P1070.12K 
       (d) MCO 5800.16 
 
Encl:  (1) DD Form 149 w/enclosures 
       (2) Unit Punishment Book record of  26 Apr 19 
       (3) Administrative Remarks (Page 11) 6105 counseling entry of 10 Mar 19 
       (4) HQMC memo 1070 JPL of 30 Jan 20 
       (5) Fitness Report for the reporting period of 2 Jun 18 to 26 Apr 19 
  
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 two Administrative Remarks (Page 11) 6105 counseling entries, removing a non-judicial punishment (NJP) of 26 April 2019, and resetting his Good Conduct date to 13 July 2021.  
 
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 26 April 2019, Petitioner accepted NJP for violations of Article 121 (Wrongful Appropriation) and 129 (Unlawful Entry) of the Uniform Code of Military Justice (UCMJ), reference (b).  Petitioner was found guilty and sentenced to forfeiture of half a month’s pay for one month and restriction for 60 days.  All punishments were suspended, see enclosure (2).  On the same day, Petitioner received two Page 11 counselings, enclosure (3), one indicating that he was found guilty at NJP and one stating that he was eligible but not recommended for promotion for six months due to his NJP.   

      c.  Petitioner contends that the record of his NJP should be removed from his official military personnel file (OMPF) because (1) the punishment was suspended and there was no punishment awarded, (2) blocks 10 and 11 of the unit punishment book (UPB) entry were dated before the NJP, and (3) the UPB entry was run on diary without the Commanding Officer’s signature.  Petitioner further argues that the rebuttal he wrote to his Page 11 counseling was not entered into his OMPF. 
 
      d.  Enclosure (4), an advisory opinion (AO) furnished by Headquarters, Marine Corps (JPL), recommended granting Petitioner’s request.  The AO noted that the UPB listed no punishment and in accordance with reference (c) if no punishment is imposed at NJP, the UPB is not to be retained in the record.  Furthermore, the AO stated that the Commanding Officer did not verify the UPB, which contained several mistakes, rendering the NJP entry invalid in accordance with reference (d).  As the NJP is invalid, accordingly, Petitioner’s 6105 counseling and promotion restriction counseling, which were based on the NJP, are invalid. 
 
     e.  The Board noted that Petitioner received an adverse fitness report covering the period 2 June 2018 to 26 April 2019.   The adverse nature of the fitness report is based entirely on Petitioner receiving NJP and Page 11 entries of 26 April 2019. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the AO, the Board determined that Petitioner’s request warrants relief.  The Board found that the UPB entry is invalid as it contained numerous errors in violation of references (c) and (d).  The Board thus concluded that Petitioner’s record shall be corrected by removing all documents related to Petitioner’s 26 April 2019 NJP, to include removing the two related 6105 counseling entries of 26 April 2019, and resetting Petitioner’s Good Conduct date to 13 July 2021.  In addition, the Board found that Petitioner’s adverse fitness report of 2 June 2018 to 26 April 2019 is invalid; due to the fact that the adversity stated in the report shall be removed from the record. 
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Remove all documents related to Petitioner’s 26 April 2019 non-judicial punishment from his official military personnel file. 
 
Remove Petitioner’s 26 April 2019 Page 11 6105 and promotion-restriction counseling entries.   
 
Reset Petitioner’s Good Conduct date to 13 July 2021. 
 
Remove fitness report dated 2 June 2018 to 26 April 2019 from his record.  In addition, ensure that the Performance Evaluation System, the database which generates the Master Brief Sheet, be modified appropriately. 
 
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. 
 
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.