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 (b) MCO P1070.12K w/CH 1 (IRAM) Encl: (1) DD Form 149 w/attachments (2) Administrative Remarks (Page 11) 6105 counseling of 18 Dec 15 (3) Administrative Remarks (Page 11) promotion-restriction counseling of 18 Dec 15 (4) HQMC memo 1070 JPL of 15 Aug 19 1. Pursuant to reference (a), 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 18 December 2015 non-judicial punishment (NJP), and his two 18 December 2015 Administrative Remarks (Page 11) counseling entries. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 18 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 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 18 December 2015, Petitioner received NJP for violation of the Uniform Code of Military Justice (UCMJ) for violations of Article 92 (failure to obey order or regulation) and Article 134 for wrongfully engaging in commercial activity or private employment at a gentleman’s club in , and violating a military protective order (MPO), adultery, and wrongfully impeding an investigation. Petitioner was properly notified of his right to refuse NJP, and afforded the opportunity to consult with an attorney before deciding whether to accept NJP. Petitioner hired a civilian defense counsel and initially refused NJP, but changed his mind after his Commanding Officer (CO) referred his case to a special court-martial (SPCM). Petitioner was awarded forfeitures of pay and 45 days’ restriction (suspended 6 months). He was advised of his right to appeal his NJP, but chose not to. c. Petitioner was also issued enclosure (2), a Page 11 6105 entry counseling him regarding his NJP, and enclosure (3), a promotion-restriction entry counseling him that he was eligible but not recommended for promotion to master gunnery sergeant due to his violation of the UCMJ. (Reference (b) requires a “not recommended for promotion entry for each month/quarter a Marine is not recommended for promotion to the grades of PFC - Sergeant.”). Petitioner acknowledged (signed) both entries and chose not to submit a written rebuttal to either. d. Petitioner contends that the seizure of evidence by his command was improper and that the evidence did not amount to proof of guilt beyond a reasonable doubt. He asserts that the decision to forego a SPCM in lieu of NJP was due to the potential emotional impact of [his wife’s testimony] upon the jurors’ emotions, and the risk of a potentially unfair conviction. e. An advisory opinion (AO) at enclosure (4), furnished by Headquarters, Marine Corps (JPL) recommended that Petitioner’s request be denied, noting that Petitioner has failed to provide substantial evidence demonstrating the existence of a probable material error or injustice warranting the removal of his NJP. JPL determined that Petitioner presented no evidence that his NJP was unlawful or otherwise improper in any regard to search and seizure of his phone or that he was forced to accept NJP. The AO noted that Petitioner discussed the decision with a civilian attorney, and on that attorney’s advice, he chose to refuse NJP. His CO then decided to refer the charges to a special court-martial, which is the normal result of a Marine refusing NJP, at which point Petitioner chose - again on the advice of his civilian attorney - to agree to accept NJP, and his CO agreed to cancel the court-martial and refer the charges back to NJP, which he did not have to do. The AO opined that Petitioner enjoyed the benefit of only facing NJP, as opposed to a special court-martial, which not only carries a much more severe potential punishment (12 months confinement vs. 2 months restriction, bad-conduct discharge vs. no discharge, for instance), but also a federal conviction on his record, if convicted. The AO further opined that Petitioner’s vague assertion that he chose NJP because his wife was being erratic and emotional - of which he provides no evidence - and he feared that might have led to an unfair conviction if he stayed at the court-martial, is baseless, as well as irrelevant. The AO noted that, even if his description of his wife was true, erratic and emotional government witnesses do not necessary hurt the defense, and often they help. A seasoned defense counsel would know this, and know how to properly handle it. As Petitioner properly points out, the burden of proof at a court-martial is significantly higher than at NJP, hence the chance of being found guilty was much lower if he chose to remain at a court-martial. That was a tactical decision, which presumably his defense counsel advised him on, based on the strength of the evidence. The AO noted that Petitioner also complains that the proper record of his NJP being in his OMPF is unjust because it does not reflect him then or now. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants partial relief. In this regard, the Board noted that, pursuant to reference (b), promotion restriction entries are issued when a Marine is not recommended for promotion to the grades of private first class through sergeant. Because Petitioner was a master sergeant when the promotion restriction counseling was issued, the Board determined that the entry is in error and concluded that it shall be removed from Petitioner’s record. The Board, however, was not willing to remove Petitioner’s NJP or his Page 11 6105 counseling entry. In this regard, the Board substantially concurred with the AO and determined that Petitioner presented no evidence that his NJP was unlawful or otherwise improper in any regard to search and seizure of his phone. The Board also noted that he was properly advised of his Article 15, UCMJ rights, and that he consulted with an attorney prior to his decision to accept NJP. The Board noted that Petitioner was advised of his right to appeal the NJP, but chose not to do so, and he did not submit a written rebuttal to the Page 11 6105 counseling entry. The Board thus concluded that Petitioner has failed to provide substantial evidence demonstrating the existence of a probable material error or injustice warranting the removal of his NJP or his Page 11 6105 counseling entry from his record. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by removing the Page 11 at enclosure (3), his 18 December 2015 promotion restriction counseling entry. No further relief be granted. 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. 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.