DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 3063-19 Docket No. 8794-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 1610.7 Encl: (1) DD Form 149 of 1 Mar 19 (2) DD Form 149 of 11 Mar 19 (3) Administrative Remarks (Page 11) 6105 counseling entry of 2 Oct 17 (4) Petitioner’s rebuttal of 10 Oct 17 (5) Fitness Report for the reporting period 24 May 17 to 2 Oct 17 (6) HQMC memo 1610 MMRP-13/PERB of 13 Sep 19 1. Pursuant to reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosures (1) and (2) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his Administrative Remarks (Page 11) 6105 counseling entry and his fitness report for the reporting period 24 May 2017 to 2 October 2017. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 31 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 2 October 2017, Petitioner was issued enclosure (3), a Page 11 6105 entry counseling him for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey order or regulation—his commanding officer’s (CO’s) policy statement on equal opportunity) by conducting acts of discrimination, including the use of disparaging terms and fostering a hostile environment. The Page 11 entry also documented Petitioner’s relief for cause. Petitioner acknowledged (signed) the entry and chose to submit a rebuttal, enclosure (4). c. Petitioner was also issued enclosure (5), an adverse fitness report for the reporting period 24 May 2017 to 2 October 2017. Petitioner’s reporting senior (RS), who was also his platoon commander, commented that complaints about Petitioner were initiated in a command climate survey, where it was reported that he regularly used derogatory language, made racist remarks, formed an atmosphere of distrust, treated women with disrespect, and demonstrated favoritism. Petitioner was relieved for cause and received adverse trait marks for leading subordinates, setting the example, and ensuring well-being of subordinates. Petitioner submitted a rebuttal to the report in which he denied the allegations against him and provided details describing his leadership style and platoon achievements. Petitioner’s reviewing officer (RO), who was also his company commander, and who has “routine, weekly interactions” with Petitioner, concurred with his RS’s marks and comments and adjudicated the differences between the RS’s and Petitioner’s statements. His RO noted that, after the command climate survey, a first lieutenant was appointed as an investigating officer (IO) to conduct a preliminary inquiry (PI) into the command climate of Petitioner’s platoon. The IO interviewed five junior Marines, 13 non-commissioned officers, four staff non-commissioned officers, and two officers. Petitioner’s RO determined that the IO’s report indicated a clear theme—that Petitioner’s conduct was appropriate when interacting with peers and seniors but inappropriate when interacting with subordinates. The Third Officer Sighter reviewed the comments by the RS, RO, and Petitioner, and determined that the factual differences were appropriately adjudicated by the RO. d. Petitioner contends that exculpatory evidence was not taken into consideration by the IO or his command, and that he was never given an opportunity to present evidence refuting the allegations because there were no nonjudicial punishment or court-martial proceedings. He also asserts that three command climate surveys were conducted prior to his relief and issuance of the Page 11 entry and adverse fitness report, and that those surveys did not contain similar accusations against him. Petitioner also submitted eight sworn statements from Marines who had direct and frequent contact with him before and during the reporting period. Each individual attested that they never witnessed the alleged misconduct, and that, if they had, they would not have condoned it but would have reported it. e. In an advisory opinion (AO), enclosure (6), the Marine Corps Performance Evaluation Review Board (PERB) determined that the report is administratively and procedurally correct as written and filed. TheAO noted that the fitness report’s adversity is based on a command PI, initiated after review of a command climate survey, both omitted from the petition. The AO noted that, as referenced in his letter to the PERB, the unit’s staff non-commissioned officer in charge (SNCOIC) opines that the adverse fitness report was based off of “incomplete information” and that he recommended the command conduct a formal command investigation, but the command decided, based on the PI, that there was enough evidence to relieve Petitioner and formally counsel him via a 6105. The AO determined that the charges levied against Petitioner in the fitness report are serious, and noted the following: . “There is a complete lack of dint, hint, suspicion, observation, corroborated and/or witnessed behavior by anyone senior to Petitioner over the course of several years. “ . “None of his peers ever witnessed the negative behavior, only subordinates. None of the subordinates apparently ever took any initiative to alert the chain of command over the course of several years.” . “A gunnery sergeant who worked alongside Petitioner for a year within the same platoon never witnessed any negative behavior.” . “His former reporting chain never encountered, or even heard of any negative behavior. The actual reporting chain never witnessed any of the documented behavior, and does not corroborate anything amiss based on first-hand knowledge.” The AO noted that “it is as if Petitioner was a proverbial Jekyll and Hyde,” and posed the following rhetorical questions: . “If Petitioner was complicit in discrimination, using disparaging terms, and fostering a hostile environment, how did the entire chain of command above him miss every signal?” . “If in fact, Petitioner was guilty of consistently violating Article 92, UCMJ, then several reporting chains’ leadership and competency should be called into question (Petitioner references working for three platoon commanders, three first sergeants, and three company commanders).” . “How does nobody in a position of authority have a clue regarding pervasive hostility amidst their ranks?” The AO further noted that, [a]pparently, the disconnect was also noted by the SNCOIC who stated the command was ‘baffled.’ It indeed must be baffling for a reporting chain to process an adverse report on Petitioner, based on serious behavioral flaws that they themselves failed to note. Additionally, this case should make every supervisor in the Marine Corps to take pause. The AO also noted that the character letters paint the picture of a concerned, caring, and competent staff non-commissioned officer. Apparently, some anonymous survey responses and PI statements state otherwise. Perhaps that is why the Marine Corps performs the surveys in the first place. To believe this narrative is to correspondingly believe the command was misinformed and did not know what was actually occurring below their very noses. The AO concluded that, “regardless of the extreme incongruity this case presents, the command provided supporting documentation and closely followed the procedures for processing an adverse fitness report. The report is deemed valid as written.” CONCLUSION Upon review and consideration of all the evidence of record, and in light of the AO, the Board concluded that Petitioner’s request warrants relief. In this regard, theBoard concurred with the PERB’s determination that, pursuant to reference (b), the fitness report is valid as written. The Board, however, determined that the seriousness of the allegations levied against Petitioner in the command climate survey required a higher level of scrutiny beyond the PI. In this regard, the Board noted that a PI serves as an analytical tool to help a commander determine whether an investigation is warranted and, if so, how it should be conducted. A preliminary inquiry is not intended to develop extensive findings of fact. The Board noted that, although the command climate survey and PI were not available for review, the evidence provided sufficiently calls into question the allegation that Petitioner routinely violated Article 92, UCMJ, and it appears that a command investigation would have been appropriate in this case. The Board also noted that, other than his rebuttal statements, Petitioner was not able to challenge the allegations at office hours or court-martial. The Board determined that the allegations levied against Petitioner were not sufficiently investigated prior to his relief for cause. The Board thus concluded that Petitioner’s Page 11 6105 entry counseling him for violation of the UCMJ, Article 92 and his relief for cause shall be removed from his official military personnel file (OMPF). The Board also determined that Petitioner’s adverse fitness report was issued solely due to the issuance of the Page 11 entry and his relief for cause, and concluded that, with removal of the Page 11 entry, the fitness report is no longer valid, and it shall be removed from Petitioner’s OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by removing enclosure (3), his 2 October 2017 Page 11 6105 counseling entry. Petitioner’s naval record be corrected by removing enclosure (4), his 10 October 2017 rebuttal. Petitioner’s naval record be corrected by removing his fitness report at enclosure (5), and a memorandum containing relevant identifying data be inserted in its place in order to maintain continuity. Any material or entries inconsistent with or relating to theBoard’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. 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 theBoard’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. Sincerely,