DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1715-19 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 w/attachments (2) Administrative Remarks (Page 11) 6105 counseling entry of 16 Nov 18 (3) Petitioner’s Page 11 rebuttal of 7 Nov 18 (4) HQMC memo 1070 JPL of 19 Jul 19 (5) Petitioner’s AO rebuttal of 25 Oct 19 1. Pursuant to the reference, Petitioner, an enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing his 16 November 2018 Administrative Remarks (Page 11) 6105 counseling entry. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 10 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, 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 16 November 2018, Petitioner was issued enclosure (2), a Page 11 6105 entry counseling him for violation of the Uniform Code of Military Justice (UCMJ), Article 134 (failure to report his knowing of wrongful use and possession of controlled substance), and Article 92 (failure to obey order or regulation). He acknowledged the entry and chose to submit a written rebuttal. In his rebuttal, enclosure (3), Petitioner denied knowing another Marine was using or in possession of a controlled substance (steroids) but acknowledged that he “should have connected more dots . . . and investigated his suspicions.” c. Petitioner asserts that he was counseled because he was accused of knowing that one of the lance corporals under his charge was selling steroids to other Marines. He claims that, during the course of an investigation, and based on text messages between himself and the lance corporal that were taken out of context, an investigator accused him of knowing about the selling of drugs but doing nothing to stop it. Petitioner also claims that, once he was told that he was going to receive a 6105 counseling, he asked his first sergeant what he should do, and was told to sign it or he would be taken to nonjudicial punishment (NJP), and that it would go into his record anyway. Petitioner also asserts that he was not given an opportunity to review the evidence against him. d. An advisory opinion (AO) at enclosure (4) furnished by Headquarters Marine Corps (JPL) recommended partial relief, noting that Petitioner failed to satisfy his burden in providing substantial evidence demonstrating the existence of a probable material error or injustice warranting removal of the Page 11 entry from his record. The AO, however, recommended that the last sentence in paragraph one of the Page 11 entry (regarding Article 92) should be removed because the entry provides no explanation of what order or regulation he allegedly violated and thus fails to sufficiently notify either Petitioner or anyone properly reading it what it means. The AO determined that Petitioner provided no evidence that his commanding officer (CO) had insufficient evidence to support the Page 11 entry. The AO noted that, in his rebuttal to the entry, Petitioner admitted that he had “suspicions” that his junior Marine was possessing and using steroids, and he stated that he “appreciate[d] this counseling.” The AO also noted that Petitioner stated that there was a text between the other Marine and him that seemed to show that he knew about the steroids. The AO concluded that, given Petitioner’s lack of evidence, and what he did provide, it is reasonable to presume that his CO had sufficient evidence to justify the Page 11 entry, at least with regard to Article 134, UCMJ. Article 134, Clause 1, prohibits conduct that is prejudicial to good order and discipline. This is very broad, and it reasonably applies to the conduct described in Petitioner’s counseling. e. Petitioner’s rebuttal to the AO, enclosure (5), asserts that the entry is hindering him from getting a top-secret security clearance. He also asserts that he did not know his Marine was dealing with an illegal substance, and that he only had suspicions because the Marine was always doing something out of line, and due to his disciplinary history. He also noted that he did not appreciate the counseling and was against it, and that he only signed it because he was scared his command would NJP him and try to administratively separate him. CONCLUSION Upon review and consideration of all the evidence, and in light of the AO, the Board concluded that Petitioner’s request warrants partial relief. In this regard, the Board concurred with the AO that the Page 11 entry gives no explanation of what order or regulation the Article 92 applies to and thus fails to sufficiently notify either Petitioner or anyone properly reading it what it means. The Board thus determined that Petitioner’s Page 11 entry shall be redacted, but not removed from his record. In this regard, the Board concurred with the AO that Petitioner did not provide any evidence that the Page 11 entry was not warranted, and that it is reasonable to presume that, following an investigation into the matter, Petitioner’s CO had sufficient evidence to justify the issuance of the entry, and that it was within his discretionary authority to do so. Therefore, the Board concluded that Petitioner’s Page 11 entry and his rebuttal shall remain in his record, but that “Violation of Article 92–(failure to obey Order or Regulation of the UCMJ)” shall be redacted from the entry. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by redacting “Violation of Article 92–(failure to obey Order or Regulation of the UCMJ)” from his Page 11 entry at enclosure (2). 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 that no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. That 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.