DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1503-19 Ref: Signature Date 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) Report of Misconduct of 18 Aug 16 (3) Polygraph Examination of 27 Jan 19 (4) Capt statements of 7 Jan 19, 17 Jun 19, and 28 Aug 19 (5) Mrs statements of 1 Feb 19 and 1 Sep 19 (6) Capt rebuttal statement of 2 Sep 19 (7) HQMC memo 1070 JPL of 3 Jul 19 (8) HQMC memo 1610 MMRP-50 of 12 Dec 19 1. Pursuant to the provisions of the reference, Petitioner, a commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (“BCNR” or “Board”) requesting that his record be corrected by removing his official military personnel file (OMPF), his 18 August 2016 Report of Misconduct (ROM), all reference to his self-referred medical treatment for alcohol abuse, and any record pertaining to civilian charges. Petitioner also requests the disclosure of information that was not available to the 26 June 2018 Board, a Special Selection Board for promotion to major (Maj/O-4), and removal of his failures of selection (FOS) incurred during the Fiscal Year (FY) 2020 and FY 2021 Major Promotion Selection Boards. 2. Petitioner previously petitioned the Board and was advised that his application (Docket # 401-18) had been disapproved. His case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 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, as well as 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. In his previous petition to the Board, Petitioner requested removal from his OMPF, his ROM, all reference to his self-referred medical treatment for alcohol abuse, and any record pertaining to civilian charges from his OMPF. b. In his current application, Petitioner contends that the ROM is factually inaccurate in determining that he assaulted his wife on 8 November 2015 (or on an unspecified date between June 2015 and January 2016), that the inclusion of his participation in alcohol treatment in the ROM is contrary to the Privacy Act, Health Insurance Portability and Accountability Act (HIPAA), and Marine Corps regulations, and that there was no justification to convene a second BCNR Board. Petitioner also contends that the Staff Judge Advocate (SJA) (JPL) Branch Head had substantial prior involvement in the matter of the ROM and was unable to render an impartial and fair opinion, and the current advisory opinion (AO) misrepresented the nature and relevance of the civilian trial and the Incident Determination Committee (IDC) findings. c. On 10 January 2016, Petitioner’s spouse made a complaint to the Police Department that the Petitioner was drinking and acting violent towards her since the previous night. She alleged that he assaulted her during an altercation on 8 November 2015 after the Marine Corps Ball. She also submitted photos of her injuries. Subsequently, Petitioner’s wife retracted her statement and asked the prosecutor to dismiss all charges against the Petitioner. The prosecutor opined that Petitioner’s spouse was the portrait of a battered woman and during the trial, she was uncooperative and changed her story. The prosecutor argued that Petitioner’s spouse intentionally derailed the prosecution. His wife testified that he did not assault her, they just argued and she did not know who took the photos. The judge found Petitioner not guilty of misdemeanor assault and battery. The Family Advocacy Program, IDC determined that the allegations did not meet their criteria for spousal physical abuse. d. On 18 August 2016, the Commander, U.S. Marine Corps Forces Command (COMMARFORCOM) issued a Report of Misconduct, in which he determined by a preponderance of the evidence that Petitioner did assault his wife on 8 November 2015, as she had initially alleged. e. On 8 September 2016, Petitioner submitted matters in response to the ROM, in which he argued that he was not under the influence of alcohol on 10 January 2016 when taken into custody, his self-referral for substance abuse treatment was not related to his arrest, the returned a verdict of not guilty of the crime of domestic violence, and the IDC found that there was no incident of domestic violence. f. On 16 September 2016, in response to Petitioner’s response to adverse matters, the COMMARFORCOM reaffirmed his initial determination in a supplemental endorsement, and broadened the timeframe of the domestic assault to sometime between on or about June 2015 and January 2016. The COMMARFORCOM also recommended that Petitioner not be required to show cause for retention in the Marine Corps. g. On 21 October 2016, the Deputy Commandant, Manpower & Reserve Affairs (DC, M&RA) determined that the incident did not warrant processing for administrative separation and directed that the adverse material concerning the incident be included in Petitioner’s OMPF. h. On 7 August 2018, the Board denied Petitioner’s application for failure to provide substantial evidence demonstrating the existence of probable material error or injustice. i. On 27 January 2019, Petitioner submitted to a polygraph examination. The examiner opined that there was a non-deceptive result to the truthfulness of the test questions, “On November 8th, 2015, did you put your hands around…neck” and On November 8th, 2015, did you inflict any type of injury to…lip?” j. In declarations by Petitioner and his wife, Petitioner claimed that he did not physically assault his wife on 18 June 2015, 8 November 2015, 9 January 2015 or 10 January 2016. Petitioner claimed that his wife’s allegations were false and fabricated out of jealousy, and that he was never physically violent toward his wife, although she has been physically violent toward him and suffers from pathological jealousy. As evidence, Petitioner submitted images of himself with bruises, statements from individuals familiar with their relationship, and a 4 February 2018 Incident Report. Petitioner’s wife claimed that Petitioner did not physically assault her and has never engaged in physical violence toward her. She also claimed that she made up the allegations because of her jealousy, she downloaded photos of an unknown woman, and went to the police station on 10 January 2016 to get revenge. k. The 3 July 2019 JPL advisory opinion (AO), enclosure (7), recommended that Petitioner’s request be denied for failing to present new and material evidence or other matters not previously considered by the Board (as opposed to merely rearticulating matters and argument), as well as for lacking merit. The AO noted that during the polygraph, Petitioner merely denied assaulting his wife on 8 November 2015 – a denial he previously made and was considered by the Board in Petitioner’s prior application. The AO further noted that Petitioner did not deny assaulting his spouse on any other date between June 2015 and January 2016. The AO explained that polygraphs are not considered reliable evidence, which is why they are generally not admissible in courts. The AO also noted that it was known in the first request to this Board that Petitioner’s wife withdrew her complaint and refused to cooperate in the civil criminal trial. The AO concluded that: (1) The Commander, MARFORCOM had independent authority to determine whether Petitioner committed the alleged misconduct. The standard of proof in making this determination was preponderance of the evidence and that adjudicator was not bound by the criminal court’s ruling, which had the much higher standard of proof of “beyond a reasonable doubt.” Nor was the COMMARFORCOM bound by the finding of the IDC, which has its own criteria and purpose. As the COMMARFORCOM was conducting a de novo review by a preponderance of the evidence, the AO opined that it was not erroneous or unjust for COMMARFORCOM to believe that, more likely than not, the wife’s first story was the more plausible and true, at least as far as the assault, and the exact date within the date range. Such plausibility and credibility determinations are well within the COMMARFORCOM’s authority and discretion. (2) The COMMARFORCOM was required to mention Petitioner’s alcohol treatment once he determined that alcohol was a contributing factor to the incident, based on the wife’s statement to the police that Petitioner had been drinking and acting physically violent towards her since the previous night, and his finding that Petitioner assaulted his wife on or about June 2015 and January 2016. (3) It was not a conflict of interest for the former JPL Branch Head to prepare the initial AO. The AO explained that the JPL Branch Head played a neutral, administrative role in the processing of Petitioner’s ROM. He gave no advice and made no decisions. His role was limited to supervising the assembly of Petitioner’s misconduct case file, which included the ROM for the SJA to the Commandant of the Marine Corps – who made a recommendation to DC, M&RA, and DC, M&RA made the decision to enter the ROM into Petitioner’s OMPF. The AO opined that the Branch Head’s previous exposure the ROM did not unfairly taint his ability to render a fair and impartial opinion. He would have viewed approximately 450 other ROMs and would have seen the ROM in Petitioner’s request. l. In rebuttal to the AO, Petitioner argued that the AO imposes a requirement of “materiality” on him that is not authorized by law, that the polygraph is yet another piece of evidence that he did not assault his wife on the specified date, that the COMMARFORCOM could find whatever he wanted, notwithstanding the findings of the trial court and IDC, and that the AO did not address new material evidence that his wife was arrested for domestic violence against him during 2011. m. On 4 March 2019, Petitioner requested removal of his adverse fitness report for the reporting period 1 June 2015 to 31 May 2016. Petitioner’s request was reviewed and approved by Headquarters, Marine Corps Performance Evaluation Review Board (PERB). n. The PERB AO at enclosure (8), recommended that Petitioner’s FOS(s) be approved. The AO explained that the PERB voted to remove an in-grade adverse fitness report from Petitioner’s record. The AO opined that the unjust report, present within Petitioner’s record during the FY 2020 Major Promotion Selection Board, contributed to his first failure to select. As a result, during the FY 2021 Major Promotion Selection Board Petitioner was in the disadvantaged position of being above zone. 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 noted that an adverse fitness report for the reporting period 1 June 2015 to 31 May 2016 was removed from Petitioner’s record after the FY 2020 Major Promotion Selection Board convened, and that Petitioner was above zone during the FY 2021 Promotion Selection Board. Accordingly, the Board substantially concurred with the MMRP-50 AO that Petitioner’s FOSs should be removed. The Board determined that the removal of the adverse report was a significant positive correction to Petitioner’s record, and he was disadvantaged when he became above zone. The Board, however, concurred with the JPL AO that Petitioner did not provide substantive new matters. The Board noted Petitioner’s polygraph examination, his statement, and evidence that his wife was abusive toward him. The Board determined that the polygraph examination was limited to a specific date and did not include the timeframe in the ROM, and that the evidence regarding Petitioner’s spouse, while disturbing, was not sufficient evidence to justify removing Petitioner’s ROM. The Board also determined that the COMMARFORCOM acted within his authority and discretion to decide whether Petitioner committed the alleged misconduct. The Board noted that COMMARFORCOM’s decision was supported by substantial evidence, including the police department’s investigation, Petitioner’s wife’s original written statement, photographs she provided corroborating her original statement, as well as the prosecutor’s account of talking to and working with Petitioner’s spouse. Considering the totality of the evidence, the Board concurred with the COMMARFORCOM’s determination and concluded that it was more likely than not, that Petitioner’s wife’s first account of being assaulted was true. Concerning the additional information that was unavailable to the first Board, the Board noted that the brief provided to the 26 June 2018 Board did not reference the initial JPL AO from the former Branch Head, and therefore did not make a fully informed decision. In contrast, the 7 August 2018 Board received a brief that included specific reference to that AO, and was provided with a balanced presentation of the material related to the case. The Board concluded that the first Board did not consider the totality of the circumstance, and that a second Board was warranted in order to do so. Concerning the role of the former Branch Head, the Board substantially concurred with the 3 July 2019 JPL AO by his successor that it is immaterial that the former Branch Head had previously viewed the ROM. The Board determined that the former’s role in the process was neutral, administrative, and limited, thus was unbiased and provided a fair and impartial opinion. Because the Board declined to remove the ROM, the Board determined too, that Petitioner’s further requested relief to remove all reference to his self-referred medical treatment for alcohol abuse, and any record pertaining to civilian charges, is unwarranted. The Board also determined that the inclusion of Petitioner’s treatment for alcohol abuse is not a violation of the Privacy Act or HIPAA. RECOMMENDATION In view of the above, the Board directs the following corrective action. That Petitioner’s naval record be corrected by removing his FY 2020 and FY 2021 Major Promotion Selection Board failures of selection. That Petitioner’s naval record be corrected so that he will be considered by the earliest possible selection board convened to consider officers of his category for promotion to major as an officer who has not failed of selection for promotion to that grade. 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 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 or discuss the material being expunged. That no other changes to Petitioner’s naval record are warranted. 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.