DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 3707-19 
Ref: Signature Date 

Dear :
 
This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
A three-member panel of the Board, sitting in executive session, considered your application on 28 April 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.
 
The Board carefully considered your request to remove your 20 March 2016 Administrative Remarks (Page 11) counseling entry from your official military personnel file (OMPF).  The Board considered your contentions that your service record does not show a breathalyzer being administered on 20 March 2016, but on 5 June 2015; that you were tested with an uncalibrated device; that you did not receive an official test for blood alcohol content (BAC); that you believe your .04 BAC was a false positive; that you were told to waive your rights and accept the Page 11 in lieu of receiving non-judicial punishment (NJP); that you were told that the Page 11 would not be inserted into your OMPF; that, according to the Inspector General of the Marine Corps Substance Abuse Program Checklist, your command was in violation of items 0103, 0301,0303, 0304, 0306 and 0307; that you were not referred to a military treatment facility for a fitness for duty evaluation as required, that no alcohol screening was submitted via the Marine Corps Training Information Management System (MCTIMS); and that you did not receive an explanation of your due process rights, including appeal. 

The Board noted that the entry does not state that you were administered a breathalyzer on 20 March 2016; that is the date you were counseled.  The Board also noted that your CO determined, by preponderance of the evidence, that you consumed alcohol within eight hours prior to reporting for duty, and whether you were tested with an uncalibrated device, whether you received an official test for BAC, or whether you believe your .04 BAC was a false positive is irrelevant.  Additionally, the issuance of the Page 11 had nothing to do with the Inspector General of the Marine Corps Substance Abuse Program Checklist, did not require that you be referred to a military treatment facility for a fitness for duty evaluation, and did not require an alcohol screening to be submitted in MCTIMS. 

With regard to your contention that you did not receive and explanation of your due process rights, including appeal, the Board noted that while Page 11 entries are not punitive and subject to appeal, you were advised that you had five working days after acknowledgement of the entry to submit a written rebuttal, and that the rebuttal would be filed in your OMPF.  You chose not to submit a rebuttal, and while the Board recognizes that this does not equate to you admitting guilt, you did, however, give up one of your best opportunities to document your implicit contention that you did not drink alcohol within eight hours of reporting for duty. 

The Board also noted that, pursuant to MCO P1070.12K, administrative materials or documents to support the chronology of events of the Marine’s history are incorporated in the OMPF at Headquarters, Marine Corps, and that commanders are authorized to make entries that are essential to document an event in a Marine’s career for which no other means or method of recording exists.  The Board determined that the issuing officer was within his discretionary authority to counsel you regarding your misconduct.  The Board concluded that you failed to meet the burden of proof necessary to establish an inaccuracy or injustice warranting removal of the Page 11 entry.
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,