Docket No: 3456-19 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 1610.7F (c) Manual for Courts-Martial, United States (2012 ed.) (d) JAGINST 5800.7E Encl:(1) DD Form 149 w/enclosures (2) Fitness Report for the reporting period 1 Feb 12 to 11 May 12 (3) Petitioner’s MCTFS Legal Action 119 Remarks of 4 Apr 20 (4) HQMC memo 1610 MMRP-13/PERB of 5 Mar 19 1. Pursuant to reference (a), Petitioner, a former 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 a fitness report for the reporting period 1 February 2012 to 11 May 2012. 2. The Board reviewed Petitioner’s allegations of error and injustice on 21 April 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, finds 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. Petitioner was issued enclosure (2), an adverse fitness report for the reporting period 1 February 2012 to 11 May 2012. Section I (directed and additional comments) notes that Petitioner, then a recruiter’s aide, was the subject of nonjudicial punishment on 11 May 2012 for violating the Uniform Code of Military Justice (UCMJ), Article 92 after he established an inappropriate social relationship with a member of the delayed entry program. Petitioner acknowledged (signed) the fitness report and chose not to make a statement. c. Petitioner contends that his fitness report is not in compliance with reference (b), the Performance Evaluation System (PES) Manual. He asserts that, pursuant to the PES, “reporting officials should ensure the unit punishment book (UPB) entry, and the appropriate MCTFS [Marine Corps Total Force System] entry to document the disciplinary action, is in the MRO’s [Marine Reported On] record prior to submitting the fitness report,” however, neither a UPB entry nor a Page 11 entry was entered into his OMPF prior to submission of the contested fitness report. d. The MCTFS legal action 119 remarks at enclosure (3) reflects that Petitioner received NJP on 11 May 2012. There is no UPB entry reflecting an 11 May 2012 NJPin Petitioner’s OMPF. e. In an advisory opinion (AO) at enclosure (4), the PERB determined that Petitioner has not shown by preponderance of evidence probable material error, substantive inaccuracy, or injustice warranting removal of the fitness report. The PERB noted that the foundational basis of Petitioner’s contention is that the disciplinary action resulting in the adverse nature of the report is not properly documented. The PERB determined that his contention lacks merit because documentation does in fact exist in Petitioner’s MCTFS file. The AO recommends that Petitioner’s request be denied. f. Pursuant to reference (c), failure to comply with any of the procedural provisions of Part V of that reference Manual shall not invalidate a punishment imposed under Article 15, UCMJ, unless the error materially prejudiced a substantial right of the Service member on whom the punishment was imposed. Pursuant to reference (d), the unit punishment book (NAVMC 10132) documents and records a NJP (including the offenses, punishment imposed, date imposed, etc., and whether the Marine was properly advised of his rights and the offenses alleged, whether he accepted NJP, and whether he appealed). The UPB entry is required to be maintained in the Marine’s OMPF. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. Although the Board concurred with the AO that the fitness report is administratively correct as written, it appropriately documents Petitioner’s NJP, and the NJP is also documented in the MCTFS, the Board determined that the issue at hand is not the fitness report, but the lack of the required UPBentry in Petitioner’s OMPF. The Board noted that Petitioner’s NJP was not properly documented pursuant to references (c) and (d), and that it is the command’s responsibilityto properly administer and record the NJP, which the command failed to do. The Board determined that, without properly recording the NJP, it is not clear that the command provided Petitioner with the procedural protections to which he was entitled, such as consultation with an attorney and the opportunity to demand a trial by court-martial. Because it is unclear that Petitioner’s due process rights were protected, the Board concluded that the fitness report documenting Petitioner’s NJP is unjust and that it shall be removed from his OMPF. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by removing enclosure (2), his fitness report for the reporting period 1 February 2012 to 11 May 2012, and that a memorandum of continuity be submitted in its place. Any material or entries inconsistent with or relating to theBoard’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. Pursuant to Section 6(c) of the revised Procedures of the Board (32 Code of Federal Regulations, Section 723.6(c)), 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. The foregoing action of the Board is submitted for your review and action.