DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1592-19      
Ref: Signature date 

Dear

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 17 March 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 

The Board carefully considered your request to remove your 4 December 2013 Administrative Remarks (Page 11) 6105 counseling entry from your official military personnel file (OMPF).  The Board did not consider your request to also remove your adverse fitness report (5 September 2013 to 10 January 2014) because you did not first exhaust all available administrative remedies by petitioning the Marine Corps Performance Evaluation Review Board (PERB) before petitioning this Board. 

The Board considered your contention that you received double punishment for the same reason.  Specifically, you contend that, after you were issued a non-punitive letter of caution (NPLOC), you received additional punitive action and were issued an Administrative Remarks (Page 11) 6105 counseling entry.  You also contend that, because you were issued the Page 11 entry immediately after your NPLOC, you did not have an opportunity to correct your deficiencies. The Board also considered your contention that you should not have received the Page 11 entry because your conduct met only one element of sexual harassment out of the three required to be in violation of MCO 1000.9A. 

With regard to your contention that you received double punishment for the same reason, the Board noted that, per JAG Instruction 5800.7E, a non-punitive letter is not considered punishment; rather, the letter is issued to remedy a noted deficiency in conduct or performance of duty.  The Board noted that, although the fact of issuance of a non-punitive letter may not be mentioned in a fitness report, the underlying facts may be included. The Board also determined that your Page 11 6105 entry creates a permanent record of a matter your commanding officer (CO) deemed significant enough to document, and as your CO, he was well within his authority to issue the counseling.  The Board noted that the entry provided written notification concerning deficiencies/impairments, specific recommendations for correction action indicating any assistance available, a comprehensive explanation of the consequences of failure to successfully take the recommended corrective action, and a reasonable opportunity to undertake the recommended corrective action.  You were also afforded the opportunity to rebut the contents of the counseling, and that rebuttal is included in your record. 
 
With regard to your contention that you should not have received the Page 11 entry because your conduct met only one element of sexual harassment out of the three required to be in violation of MCO 1000.9A, the Board noted that, per MCO 1000.9A, for a person’s behavior to be considered sexual harassment, it must meet three criteria: (1) it must be unwelcome, (2) it must be sexual in nature, and (3) it must occur in or impact on the work environment. The Board reviewed your NPLOC and your Page 11entry and determined that it met all three criteria of sexual harassment.  
The Board thus concluded that your contentions are without merit, and that the contested counseling entry does not constitute probable material error or injustice warranting removal from your record. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,