DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1154-19 Ref: Signature Date From:Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref:(a) 10 U.S.C. § 1552 (b) Manual for Courts-Martial, United States (2019 ed.) (c) Manual for Courts-Martial, United States (2012 ed.) Encl:(1) DD Form 149 w/enclosures (2) Administrative Remarks (Page 11) 6105 counseling entry of 25 Nov 14 (3) Petitioner’s rebuttal of 2 Dec 14 1. Pursuant to reference (a), Petitioner, a warrant officer in the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing an Administrative Remarks (Page 11) counseling entry and his rebuttal. 2. The Board reviewed Petitioner’s allegations of error and injustice on 3 March 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, finds 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 25 November 2014, Petitioner was issued enclosure (2), a 6105 Page 11 entry counseling him for violation of the Uniform Code of Military Justice (UCMJ), Article 134 (adultery). He acknowledged (signed) the entry and submitted a rebuttal. In his 2 December 2014 rebuttal, Petitioner claimed he was legally separated in October 2013 and officially divorced October 2014, and that he and his ex-spouse were at the mercy of the legal separation requirements in . Therefore, he did not believe adultery was committed under the circumstances. c. Petitioner contends that reference (b) provides that legal separation is an affirmative defense to the offense of extramarital sexual conduct that if the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction. The affirmative defense does not apply unless all parties to the conduct are either legally separated or unmarried at the time of the conduct. Petitioner also contends that he was legally divorced from his ex-wife and remarried when the Page 11 was issued. d. Pursuant to reference (c), “A marriage exists until it is dissolved in accordance with the laws of a competent state or foreign jurisdiction.” Under Article 134 (Adultery), “[c]ommanders should consider all relevant circumstances, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit upon the armed forces”: “[w]hether the accused or co-actor was legally separated.” MAJORITY CONCLUSION Upon review and consideration of all the evidence of record, the majority finds the existence of an injustice warranting relief. In this regard, the majority noted that Petitioner had been legally separated from his then-wife and that their divorce was delayed only due to the legal separation requirements of the State of North Carolina. The Board also determined that, had allegations of adultery occurred today, pursuant to reference (b), Petitioner’s legal separation would have been an affirmative defense to the offense of extramarital sexual conduct. Therefore, the majority determined that Petitioner’s 6105 Page 11 counseling entry and rebuttal are unjust, and concluded that they shall be removed from his official military personnel file (OMPF). MAJORITY RECOMMENDATION In view of the above, the majority directs the following corrective action. Petitioner’s naval record be corrected by removing enclosure (2), his 25 November 2014 6105 Page 11 counseling entry. Petitioner’s naval record be corrected by removing enclosure (3), his 2 December 2014 rebuttal. MINORITY CONCLUSION Upon review and consideration of all the evidence of record, the minority member determined that Petitioner’s record is not in error or unjust. In this regard, the minority noted that, prior to Petitioner’s counseling, per reference (c), he had been in violation of the UCMJ, Article 134 (adultery). The minoritydetermined that Petitioner’s legal separation status was a factor his commander took into consideration when determining whether the issuance of his 6105 Page 11 counseling was warranted. The minority determined that it was within the commander’s discretionary authority to issue the Page 11 entry, and it is not in error or unjust for it to remain in Petitioner’s OMPF. The minority thus determined that Petitioner’s record is not in error, and concluded that the requested relief is not warranted. MINORITY RECOMMENDATION No relief be granted. 4. Pursuant to Section 6(c) of the revised Procedures of the Board (32 Code of Federal Regulations, Section 723.6(c)), 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.