From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD OF    
 
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 30 Apr 18 
 (3) Petitioner’s rebuttal of 1 May 18 
 (4) Administrative Remarks (Page 11) 6105 counseling of 11 Feb 19 
 (5) Petitioner’s rebuttal of 19 Feb 19 
 (6) HQMC memo 1070 JPL of 6 Apr 20 
 
1.  Pursuant to the provisions of 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 30 April 2018 and 11 February 2019 Administrative Remarks (Page 11) 6105 counseling entries. 
 
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 26 May 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 30 April 2018, Petitioner was issued enclosure (2), a 6105 Page 11 entry counseling him for failure to adequately supervise while acting in the capacity of a work center supervisor and collateral duty inspector (CDI) after a command investigation found Petitioner failed to properly supervise the EA-6B maintenance, specifically for failing to realize that the aircraft should have been on jacks.  Petitioner acknowledged (signed) the entry and submitted enclosure (3), a written  rebuttal on 1 May 2018.  In his rebuttal, Petitioner accepted responsibility for his role in the incident and focused on how he did not let the incident impact his performance, that he was working to have his CDI status reinstated, and that he was preparing aircraft for the unit’s deployment in support of Operation Inherent Resolve.   
 
 c.  On 19 June 2018, the charge of violation of Article 92, Uniform Code of Military Justice was preferred against Petitioner, stating that he “negligently failed to effectively intervene when he observed [a lance corporal] removing the nose landing gear toggle link from an EA-6B aircraft that did not have aircraft jacks installed, as it was his duty to do.”  Petitioner refused nonjudicial punishment (NJP), and the charge was referred to a special court-martial.  As part of the discovery process in this case, defense counsel requested, and the military judge ordered, discovery of the unredacted report of the command’s safety investigation.  On 14 December 2018, the Secretary of the Navy refused to request permission from the Deputy Under Secretary of Defense (Installations and Environment) to release the report and instead exerted the safety privilege.  An unredacted copy of the report was provided to the military judge, who found that it contained exculpatory material.  As a result, on 2 January 2019, the judge ordered the charge against Petitioner to be dismissed without prejudice. 
 
 d.  On 11 February 2019, Petitioner was issued enclosure (4), a 6105 Page 11 entry that was  identical to his 30 April 2018 Page 11 entry, with additional comments counseling him for his failure to accept responsibility for his part in the events of 25 January 2018.  On 19 February 2019, Petitioner submitted enclosure (5), a written rebuttal, reiterating all of the things he was doing to regain his CDI and how he was continuing to serve as a leader in the command, giving his version of events, and stating that he did not agree that he had failed to take responsibility.  Petitioner contends that this Page 11 entry was issued for the same incident, and that both entries should be removed from his record. 
 
 e.  The advisory opinion (AO) at enclosure (6), furnished by Headquarters, Marine Corps (JPL) recommended that Petitioner’s request be approved, in part, noting that he has satisfied his burden to demonstrate the existence of a probable material error or injustice warranting removal of his 11 February 2019 Page 11 entry.   
 
The AO determined that reference (b) provides that “if the accused is acquitted of all charges and specifications then…the [record] will contain no indication that the accused’s case was referred to a court-martial.”  The AO noted that, although this situation is not an acquittal, but rather a dismissal, and the 11 February 2019 counseling does not reference the court-martial, but rather a “failure to take responsibility,” the concept here is the same.  Reference (b) indicates that when a Marine is not convicted, the Marine’s service record book should not include any negative material as a result.  JPL determined that the Commanding General of  counseled Petitioner for failing to accept responsibility, which is tantamount to counseling him for refusing NJP and for choosing not to plead guilty at the court-martial, both of which were Petitioner’s legal rights.  JPL also noted that Petitioner did not commit any additional misconduct which precipitated the need for the 11 February 2019 counseling.  
  
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the AO, the Board concluded that Petitioner’s request warrants partial relief.  In this regard, the Board noted that Petitioner’s commanding officer (CO), relying on the findings and recommendation of a command investigation, found by a preponderance of the evidence, that he failed to adequately supervise while acting in the capacity of a work center supervisor and CDI.  The Board also determined that the entry creates a permanent record of a matter his CO deemed significant enough to document, and that Petitioner’s evidence did not show otherwise.  The Board also determined that the entry met the 6105 counseling requirements detailed in MCO 1900.16 (MARCORSEPMAN).  Specifically, the Board noted that the entry provided written notification concerning his deficiencies, specific recommendations for corrective 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.  Petitioner was afforded the opportunity to rebut the counseling, and his rebuttal is included with the record.  The Board thus concluded that the 30 April 2018 Page 11 entry does not constitute probable material error or injustice warranting its removal from his record.   
 
The Board concurred with the AO and determined that Petitioner’s 11 February 2019 Page 11 entry is tantamount to counseling him for refusing NJP and for choosing not to plead guilty at his court-martial, both of which were Petitioner’s legal rights.  The Board thus concluded that Petitioner’s 11 February 2019 Page 11 counseling entry and his 19 February 2019 rebuttal shall be removed from his record. 
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Petitioner’s naval record be corrected by removing enclosures (4) and (5), his 11 February 2019 6105 Page 11 entry and his 19 February 2019 rebuttal, respectively. 
 
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 or database entries that reference or discuss the expunged material. 
 
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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 
 
    6/14/2020