From:  Chairman, Board for Correction of Naval Records 
To:       Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD OF    
 
Ref:     (a) Title 10 U.S.C. § 1552 
 (b) MCO P1070.12K w/ Chapter 1 (IRAM) 
 (c) MCO P1400.32D 
 
Encl:   (1) DD Form 149 w/enclosures 
 (2) HQMC memo 1070 JPL of 10 Jan 20 
 (3) HQMC memo 1400/3 MMPR-2 of 14 Feb 20 
    
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 all Administrative Remarks (Page 11) counseling entries from March 2018 to August 2019 from his official military personnel file (OMPF) and adjust date of rank (DOR) for sergeant for the first available eligibility date of 1 April 2018. 
 
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 16 February 2021 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. Additionally, the Board considered the advisory opinions (AO) provided at enclosures (2)-(3). 
 
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 December 2017 Petitioner provided a urine sample which tested positive for cocaine.  Petitioner was notified that he would be separated from the Marine Corps with a General (Under Honorable Conditions) characterization of service.  On 25 July 2018 Petitioner submitted a letter to the Commanding General,  retention.  On 11 November 2018 Petitioner was re-notified that he would be processed for separation, with the possibility of receiving an Other than Honorable characterization of service.  From 30 March 2018 to 23 July 2019 Petitioner received a total of seven Page 11 entries.  Six Page 11 entries stated that he was not recommended for promotion to sergeant due to pending legal action/administrative separation (#1: 30 March 2018; #2: 27 June 2018; #3: 27 June 2018; #4: 31July 2018; #6: 12 July 2019; and #7: 23 July 2019).  Petitioner received one Page 11(#5: 31 July 2018) stating that he was not eligible for promotion due to Drug Abuse in accordance with (IAW) reference (c).  On 30 January 2019 Petitioner underwent an administrative discharge board (ADB) where the ADB determined by majority vote that the preponderance of the evidence did not prove the misconduct.  The ADB recommended Petitioner’s retention in the Marine Corps.   
 
      c.  Petitioner contends that the Page 11 entries will negatively impact his career in the Marine Corps and argues that they should be removed from his OMPF due to the fact that his administrative separation board did not substantiate misconduct and that he was recommended for retention in the Marine Corps.   
 
      d.  Enclosure (2), an advisory opinion (AO) furnished by Headquarters, Marine Corps (JPL), recommended partially granting Petitioner’s request.  JPL recommended that the first through fourth, sixth, and seventh Page 11 entries be removed as they refer to pending legal or administrative action and reference (b) states a command should “not make entries on page 11 which concern administrative discharge or competency review proceedings if they do not, upon final review, result in discharge or reduction.”  However, JPL noted the fifth page 11 entry, which states Petitioner was not eligible for promotion due to Drug Abuse in accordance with reference (c), is valid but contains an administrative error.  JPL recommended modification to the fifth Page 11 entry as it cites the wrong paragraph of reference (c).  
 
      e.  Enclosure (3), an AO furnished by Headquarters, Marine Corps (HQMC), (MMPR-2), recommended denying Petitioner’s request with regards to a 1 April 2018 sergeant DOR due to the fact that Petitioner did not meet Time in Grade requirements until 1 May 2018.  In addition, the AO noted that as a result of receiving the Page 11 for Drug Abuse IAW reference (c), Petitioner was in a promotion restriction status from 11 January 2018 through 11 August 2019.  Petitioner was promoted to sergeant 1 November 2019.  
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the JPL and MMPR-2 AOs, the Board determined that Petitioner’s request warrants partial relief.  The Board found that Page 11 entries one through four, six, and seven are in violation of reference (b).  The Board thus concluded that Petitioner’s Page 11 entries one through four, six, and seven shall be removed from Petitioner’s record.   
 
In addition, the Board found that the Page 11 entry received 31 July 2018 due to Drug Abuse IAW reference (c) is erroneous as it cites the incorrect paragraph.  The Board concluded that Petitioner’s Page 11 entry received 31 July 2018 shall be modified by redacting the verbiage “par 1204.4v.”   
 
Lastly, the Board found that the AO, enclosure (3), was in error by stating Petitioner was in a promotion restriction status from 11 January 2018 through 11 August 2019.  The Board noted that Petitioner's positive urinalysis results was received on 11 January 2018; as such, Petitioner's 18-month promotion restriction status would have ended on 11 July 2019 vice 11 August 2019 IAW reference (c).  The Board concluded that Petitioner was eligible for promotion to Sergeant on 1 August 2019 prior to his current DOR of 1 November 2019.   
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Remove Petitioner’s Page 11 6105 counseling entries one through four, six, and seven from his OMPF. 
 
Redact the verbiage “par 1204.4v” from 31 July 2018 Page 11 due to Drug Abuse IAW reference (c).  
 
Promote Petitioner to sergeant/E-5 effective 1 August 2019 vice 1 November 2019.  Note: Cutting score for an active Sergeant with an MOS of 6218 was 1683, and Petitioner’s Composite score (12 June 2019) was 1797. 
 
Note: Defense Finance & Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay and allowances. 
 
HQMC will use an administrative filler to remove date gap (1 August 2019 to 31 October 2019) from Petitioner’s record/fitness report. 
 
No further relief be granted. 
 
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.