Docket No: 2724-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER USMC Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) NAVMC 10132 Unit Punishment Book of 23 Dec 09 (3) CO ltr 5800 S-1 undated (4) Fitness report for the report period 1 Oct 09 to 4 Jan 10 (5) HQMC memo 1070 JPL of 3 Apr 20 (6) HQMC memo 1070 JPL of 12 Jun 20 1. Pursuant to the provisions of the reference, Petitioner, a former enlisted service 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 22 December 2009 Unit Punishment Book (UPB) documenting his non-judicial punishment (NJP) and his fitness report for the reporting period 1 October 2009 to 4 January 2010 from his official military personnel file (OMPF). 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 21 July 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, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board made the following findings: a. Petitioner contends that: (1) he was not informed of the implication of accepting NJP instead of a court-martial, Petitioner referenced U.S. v. Donovan Crank, et al (E.D. Va 2012). Petitioner claims that after being arrested for Driving While Impaired (DWI) during March 2009, his platoon commander (Plt Cmdr) gave him the option to plead guilty in civil court in lieu of being prosecuted by the military; (2) although advised to seek legal counsel, no legal counsel was provided; (3) he was coerced into accepting NJP, with the threat of losing holiday leave, therefore his decision to accept NJP was not voluntary, knowing, or intelligent, Petitioner referenced Fairchild v Lehman; (4) Petitioner faced multiple punishments by the military and civil court for the same occurrence, Petitioner referenced joint jurisdiction, and the Manual for Courts-Martial (MCM). Petitioner claims that a person pending trial or who has been tried by State court is ordinarily not tried by court-martial for the same act, and NJP may not be imposed for an offense tried by a court which derives its authority from the U.S; (5) charges were improperly preferred, (6) Petitioner’s chain of command committed acts to ensure he was punished beyond reason, and ultimately forced out of the Marine Corps without the ability to reenlist. Petitioner claims that he was in the above zone for selection to the pay grade E-6 and the reduction to pay grade E-4 made him ineligible to reenlist; (7) his UPB contains forgeries. Specifically, the effective date, the waiver of appeal, the date of notice to accused of final disposition, Petitioner claims that he left the appeal choice blank because he was still seeking counsel and he had no opportunity to appeal because he was placed on leave then discharged; and (8) he did not receive his contested fitness report because it was completed after his discharge. b. On 18 March 2009, Petitioner was arrested and charged with DWI by the , Metro Police Department following a motor vehicle accident. Petitioner’s breath alcohol analysis was .169 percent, exceeding the state legal limit of .08 percent. c. Petitioner participated in a unit deployment to Iraq from March 2009 to August 2009. d. On 23 December 2009, enclosure (2), Petitioner received NJP and was found guilty of violating Article 92, Uniform Code of Military Justice (UCMJ) for consuming alcohol and operating a vehicle and Article 111, UCMJ for the drunken or reckless operation of a vehicle with a BAC of 0.16 percent. In enclosure (3), Petitioner was notified of his Article 31 UCMJ rights, accepted NJP, was afforded the opportunity to consult with a military lawyer, elected not to speak with a lawyer, and he was afforded the right to appeal the NJP and did not submit an appeal. e. On 4 January 2010, Petitioner was discharged from active service. f. On 15 February 2010, Petitioner’s former reporting senior (RS) submitted enclosure (4), a change of reporting senior fitness report for the reporting period 1 October 2009 to 4 January 2010. The fitness report was adverse due to Petitioner’s NJP. Sections J.2 and K.6 (Signature of Marine Reported On Signature) was annotated “Provided to MRO, no response.” g. The advisory opinion (AO), enclosure (5), noted that Petitioner’s application was not timely and recommended that his request to remove his UPB be denied. The AO, however, recommended that Petitioner’s request to remove his contested fitness report should be granted. In this regard, the AO noted that Petitioner’s RS signed his fitness report on 15 February 2010, well after Petitioner’s reduction in pay grade to E-4 and after his discharge on 4 January 2010. The AO also noted that Marine Corps Order (MCO) 1610.7A, the Marine Corps Performance Evaluation System (PES) Manual requires that a Marine be provided a copy of any adverse fitness report and be afforded the opportunity to provide a rebuttal. The AO determined that based on the timeline, it appears that Petitioner was not provided an opportunity to review and submit a rebuttal to the report. The AO thus concluded that the contested fitness report is administratively incorrect. h. The AO, enclosure (6), recommended that Petitioner’s request to remove his UPB be denied. In this regard, the AO noted that Petitioner’s reliance upon U.S. v. et al (E.D. Va 2012) is misguided. The decision was related to DWI cases that occurred on base and the service members accepted NJP, while facing both administrative consequences and federal prosecution. Further, Petitioner was not similarly situated to those service members because he was not cited on a military installation. Moreover, if Petitioner’s platoon sergeant, platoon commander, and first sergeant promised him that they would not recommend NJP, it is ultimately the commanding officer’s decision whether or not a Marine should receive NJP. Concerning Petitioner’s contention that no legal counsel was provided, the AO noted that Petitioner was given the number for defense services at , the attorneys recommended that he contact the office at , as they did not know Marine Corps procedures. While Petitioner claims that he did not receive a return call for seven days, the AO opined that Petitioner could have called a second time; called ; sought a civilian attorney; or called a second time for general advice. The AO concluded that Petitioner did not actively seek out legal counsel after the command gave him seven days to seek legal advice. Concerning Petitioner’s contention that he was coerced and his decision was not voluntary, knowing or intelligent ), the AO noted that the coercion referenced by Petitioner involved discussions with members of his command that he and his CO might have to stay on orders if he did not waive his right to a court-marital, and that he was given the option to plead guilty in civil court to avoid military prosecution. The AO determined that Petitioner and his CO would have likely been recalled to active duty for a trial. Further, Petitioner was provided with written advisement of his rights at NJP and the opportunity to seek legal counsel, thus Petitioner made an informed decision to accept NJP; he was not coerced. Concerning Petitioner’s contention that he faced multiple punishments by the military and civilian court for the same occurrence. The AO noted that, this is not an error or injustice. The military justice system is entirely separate from the criminal court of the state of Nevada. The AO determined that Petitioner can be held accountable in both forums, thus NJP in one forum does not preclude him being punished in the other. Concerning Petitioner’s contention that charges were improperly preferred, the AO noted that his charge sheet was not preferred, therefore any errors he believes are present did not cause any harm to him and do not require any relief. Concerning Petitioner’s contention that his chain of command committed acts to ensure he was punished beyond reason and ultimately forced out of the Marine Corps without the ability to reenlist. The AO provided that Petitioner was a passed over Sergeant (Sgt/E-5) who was charged with DWI and was thus not competitive for promotion. The AO determined that, the timing of Petitioner’s NJP would not have made a difference, even if he was selected for promotion before the NJP, his promotion would have been delayed or revoked, and he would have still faced separation due to Enlisted Career Force Controls (ECFC). Concerning Petitioner’s contention that his UPB contains forgeries, the AO determined that Petitioner’s assertion is not correct, it appears that when he did not file an appeal within the allotted time, the command changed his “intend” to “do not intend,” annotated block 13, and the UPB was then finalized by the Commanding Officer. 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 contained in enclosures (5) and (6). Specifically, both AOs recommended denying the removal of Petitioner’s UPB, however, enclosure (5) recommended granting Petitioner’s request to remove his fitness report for the reporting period 1 October 2009 to 4 January 2010. The Board noted that Petitioner’s contested fitness report was submitted in error, Petitioner’s report was adverse, yet he was not provided with a copy of the report, nor was he afforded the opportunity to provide a statement in rebuttal to the report. The Board determined that Petitioner’s reporting officials failed to submit his fitness report in accordance with the PES Manual, thus his contested fitness report shall be removed. Regarding Petitioner’s request to remove his UPB, the Board substantially concurred with the AO contained in enclosure (6). In this regard, Petitioner provided no evidence of an error or injustice in his record, nor did he provide evidence challenging the basis for his NJP. The Board noted that Petitioner did not deny driving while intoxicated and prior to his NJP, Petitioner declined his right to consult with an attorney, elected to accept NJP, and did not appeal his NJP. The Board considered Petitioner’s reference to U.S. v. and determined that Petitioner’s reference to the fore mentioned cases are misguided, Petitioner was not similarly situated as the service members in these cases, thus the courts determination does not apply to his case. Further, the notification and election of rights Petitioner received and acknowledged provided him with the correct information regarding the military consequences that he faced, and the Board found no evidence that Petitioner was coerced, and he provided none. The Board also determined that the military justice system and the are separate forums, therefore, Petitioner’s commanding officer was not restricted by potential future civil actions. Regarding Petitioner’s potential for reenlistment, the Board noted that Petitioner was previously not selected for promotion to E-5, was found guilty at NJP for DWI, and was near ECFC as an E-5. The Board determined that Petitioner’s selection for promotion was highly unlikely, even if selected for promotion to E-6, his promotion would have been delayed and/or revoked. Lastly, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharge their officer duties. The Board thus concluded that there is no probable material error or injustice warranting additional corrective action. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by removing his fitness report for the reporting period 1 October 2009 to 4 January 2010. 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. 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. 9/17/2020 Executive Director