DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 145-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 1900.16 (c) MCO P1400.32D Encl: (1) DD Form 149 (2) NAVMC 10132 Unit Punishment Book entry of 14 Jun 18 (3) NAVMC 118(11) 6105 Administrative Remarks of 15 Jun 18 (4) ltr of 18 Jun 18 (5) Record of Enlisted Counseling of 5 Feb 18 (6) of 16 Mar 18 (7) CMC ltr 1450/5 MMPR-2 of 27 Aug 18 (8) HQMC memo 1070 JPL of 6 Dec 19 (9) HQMC memo 1070 SEC of 28 Oct 19 1. Pursuant to the provisions of reference (a), Petitioner, a staff 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 from his official military personnel file (OMPF), the unit punishment book (UPB) entry documenting his 14 June 2018 non-judicial punishment (NJP), the 15 June 2018 Administrative Remarks (Page 11) 6105 counseling entry, and his 18 June 2018 rebuttal statement. Petitioner also requests reinstatement of his Fiscal Year (FY) 2018 Master Sergeant (MSgt/E-8) promotion selection. 2. The Board reviewed Petitioner’s allegations of error and injustice on 4 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 that, before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board made the following findings: a. On 5 February 2018, Petitioner was issued a Record of Enlisted Counseling for his involvement in a verbal altercation that turned physical. According to the entry, Petitioner began yelling loudly in the face of another gunnery sergeant (GySgt). Petitioner was shoved away from the GySgt, and he fell to the ground. As other members intervened, Petitioner was heard yelling irrational threats to harm the other GySgt and his family. As Petitioner was removed, he continued to make threats and exhibited an angry emotional state that he was unable to control for hours afterwards. During this period, Petitioner punched a vehicle and a stray dog. The entry also noted that Petitioner did not violate Special Operations Command Forward-East Africa’s (SOCFWD-EA) alcohol policy. b. A command investigation recommended that Petitioner receive mental health counseling, that punitive action against him for violating Article 134, Uniform Code of Military Justice (UCMJ), be considered, and that the alcohol policy be examined. c. On 14 June 2018, Petitioner received NJP for violating Article 92 and Article 134, UCMJ, for failing to uphold the spirit and intent and overall operation directives of the SOCFWD-EA Alcohol Consumption Policy and for communicating a threat. d. On 15 June 2018, Petitioner was issued a 6105 Page 11 entry counseling him for his NJP. In his rebuttal, Petitioner acknowledged that the incident did occur, and he took full responsibility for his actions. e. On 27 August 2018, the Deputy Commandant, Manpower and Reserve Affairs, notified Petitioner that his name was removed from the FY 2018 First Sergeant and Master Sergeant Selection List. The notification was based upon Petitioner’s commanding officer’s (CO) letter regarding Petitioner’s NJP and his loss of trust and confidence in Petitioner’s abilities to perform at the level expected of a master sergeant. f. In his application, Petitioner contends that his NJP was unjust because his Senior Enlisted Leader noted that he had not violated the SOCFWD-EA alcohol policy. Petitioner also contends that he was physically assaulted prior to making his statements, the witnesses did not find his statement threatening, he was asked not to appeal the NJP because the battalion commander was transferring the next day, and his promotion selection to MSgt was revoked because he received NJP. g. The AO at enclosure (8) recommended that Petitioner’s application to remove his NJP be approved in part. The AO opined that the Article 92, UCMJ, specification failed to state an offense, that it did not contain language indicating that Petitioner was derelict in his duties, that it did not indicate that he violated the actual “Alcohol Policy,” only the spirit of the policy, and that it did not indicate that his conduct was wrongful. The AO thus concluded that all reference to the Article 92, UCMJ, violation on the UPB entry and 15 June 2018 6105 Pag1 11 entry should be redacted from Petitioner’s record. The AO concluded, however, that Petitioner’s actions met the elements of communicating a threat, because he did communicate “certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person” by expressing a desire to threaten a GySgt and his family, and a desire to burn down that Marine’s tent and harm anyone who got in his way, including two officers. The AO noted that Petitioner admitted to, and took responsibility for, these threats. The AO further concluded that it was not erroneous to revoke Petitioner’s promotion based on his actions. The AO noted that Petitioner’s promotion to E-8 was revoked because he was found guilty of communicating threats and because his CO lost trust and confidence in his ability to perform at the level expected of an E-8. Finally, the AO opined that, because the appeals process does not include the commander who imposed the punishment, the presence or absence of his CO was irrelevant to the appeal, and Petitioner provided no evidence that he was asked not to appeal his NJP. h. The advisory opinion (AO) at enclosure (9) recommended that Petitioner’s request be disapproved. The AO explained that the 6105 counseling entry is administratively and procedurally correct as written and filed, documents Petitioner’s NJP, provides recommendations for corrective action, and gave Petitioner the opportunity to make a written rebuttal, which he did. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial corrective action. The Board substantially concurred with the AOs. In this regard, the Board found that the contested counseling entry is administratively and procedurally correct as written and filed, but determined that all reference to the Article 92, UCMJ, violation on the 6105 entry and the UPB should be redacted, because the specification stating a violation of Article 92, UCMJ, did not indicate that Petitioner actually violated the “Alcohol Policy,” only the spirit of the policy. However, concerning the Article 134, UCMJ, violation, the Board noted that Petitioner admitted to and took responsibility for his actions. Moreover, the Board substantially concurred that Petitioner did communicate a threat and that his actions met the elements of communicating a threat. The Board also determined that Petitioner’s NJP was just and conducted in accordance with the Manual for Courts-Martial, and that Petitioner was appropriately counseled pursuant to paragraph 6105 of reference (b) for his NJP. Regarding Petitioner’s contention that he was physically assaulted prior to making the threats, pthe Board noted that Petitioner was observed yelling loudly in the face of another Marine when that Marine shoved Petitioner and he fell to the ground. The Board determined that Petitioner’s prior actions demonstrated that he was already angry and not in control, and that, therefore, being shoved was not the cause of his threats. Regarding the revocation of Petitioner’s promotion selection to MSgt, the Board noted that Petitioner was found guilty during NJP for communicating threats to several Marines, and Petitioner’s CO lost trust and confidence in his ability to perform at the level expected of a master sergeant. The Board thus determined that Petitioner’s promotion selection revocation was just and in accordance with reference (c). Concerning Petitioner’s assertion that he was asked not to appeal the NJP because of his battalion commander’s transition, the Board determined that the presence or absence of his battalion commander was irrelevant to his appeal, and the Board found no evidence that Petitioner was asked not to appeal his NJP. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by redacting his 14 June 2018 UPB entry to remove the block 22 Additional Remarks statement: “(1) Art 92 (Failure to obey an order or regulation). In that Petitioner did, at on 27 January 2018, failed to obey an order and regulation, in that SNM was physically and mentally impaired due to the consumption of alcohol and failed to uphold the spirit, intent and overall operational directives of the SOCFWD­EA Alcohol Consumption Policy.” Petitioner’s naval record be corrected by redacting his 15 June 2018 Page 11 6105 counseling entry to remove the statement, “Article 92 (Failure to obey an order or regulation).” Any material or entries inconsistent with or relating to theBoard’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems/database entries that reference and/or discuss the material being expunged. No other changes to Petitioner’s naval record. 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. 3/12/2020 Deputy Director