From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD     
Ref:   (a) 10 U.S.C. § 1552 
 
Encl:  (1) DD Form 149 
       (2) Administrative Remarks (Page 11) counseling of 23 Oct 19 
       (3) Petitioner’s rebuttal of 30 Oct 19 
       (4) HQMC memo 1070 JPL of 10 Jan 20 
 
1.  Pursuant to the reference, Petitioner, a non-commissioned officer 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 Administrative Remarks (Page 11) counseling entry at enclosure (2). 
 
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 26 February 2020 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, 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 23 October 2019, Petitioner was issued enclosure (2), a Page 11 6105 entry counseling him for possible violation of the Uniform Code of Military Justice (UCMJ), Article 134 (extramarital sexual conduct).  Petitioner acknowledged (signed) the entry and chose to submit a written rebuttal.  In his rebuttal, Petitioner objected to receiving the counseling for a “possible violation of Article 134” and claimed that the accusations made against him were not true.   
 
 c.  An advisory opinion (AO) at enclosure (4), furnished by Headquarters, Marine Corps (JPL) recommended that Petitioner’s request be approved, noting that he has satisfied his burden to demonstrate the existence of a probable material error or injustice warranting removal of the Page 11 entry.  The AO determined that Petitioner’s commanding officer (CO) acknowledged merely it is “possible” that Petitioner may have committed an offense under the UCMJ, but he did not indicate that he had reviewed the investigation in the case and made a determination that 
substantial evidence supported the basis for the 6105 counseling.  The AO noted that, although there is a presumption of regularity that supports the official actions of public officers, Petitioner has provided sufficient evidence to overcome this presumption.  Specifically, a negative administrative counseling such Petitioner’s has significant impacts on a military member’s career, and as drafted, Petitioner’s counseling in his OMPF and military records does not meet the minimum evidentiary standard for taking a harmful personnel action. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the AO and Petitioner’s Page 11 rebuttal, the Board determined that Petitioner’s request warrants relief.  The Board concurred with the AO that Petitioner’s CO acknowledged merely that it was “possible” that Petitioner may have committed an offense under the UCMJ, and not that substantial evidence supported the basis for the Page 11 entry.  The Board also noted Petitioner’s rebuttal asserting that false accusations were made against him, and his vehement denial of the accusations.  Therefore, the Board concluded that the Page 11 entry and Petitioner’s rebuttal shall be removed from his OMPF. 
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Petitioner’s naval record be corrected by removing his 23 October 2019 Page 11 at enclosure (2), and his 30 October 2019 rebuttal at enclosure (3). 
 
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. 
 
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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.