DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 4058-19 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 P1070.12K W/CH 1 (IRAM) Encl: (1) DD Form 149 w/attachments (2) Administrative Remarks (Page 11) 6105 counseling of 23 Oct 17 (3) Petitioner’s UPB entryof 5 Dec 17 (4) Administrative Remarks (Page 11) counseling of 26 Nov 17 (5) Administrative Remarks (Page 11) 6105 counseling of 7 Jan 19 1. Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosure (1) with this Board, requesting that his record be corrected by removing his 5 December 2017 nonjudicial punishment (NJP). Petitioner also requested his 23 October 2017 and 7 January 2019 Administrative Remarks (Page 11) 6105 counseling entries be removed from his official military personnel file (OMPF). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 5 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 23 October 2017, Petitioner was issued enclosure (2), a 6105 Page 11 entry counseling him for violation of Article 92 and Article 111, Uniform Code of Military Justice. The entry noted that Petitioner was stopped by civilian police for speeding 85 mph in a 60 mph zone. Additionally, after further investigation by the police, it was discovered that he was operating a vehicle in an intoxicated condition under the influence of alcohol. Petitioner acknowledged (signed) the entry and chose not to submit a written rebuttal. c. On 5 December 2017, Petitioner received NJP for violation of Article 92 (failure to obey order or regulation), UCMJ for operating a vehicle in an intoxicated condition under the influence of alcohol. The NJP was documented in the unit punishment book (UPB) (enclosure (3)). Prior to the imposition of NJP, Petitioner was notified of his right to refuse NJP, afforded the opportunity to consult with a military lawyer before deciding to accept NJP, and he was advised of his right to appeal the NJP. Petitioner was awarded a reduction in rank to lance corporal/E-3, forfeitures of pay, and 14 days extra duty. The forfeitures of pay were suspended for six months, and Petitioner did not appeal the NJP. d. Petitioner contends that his 5 December 2017 NJP was not based on facts because he was only found guilty [in civilian court] of illegal parking, and that the offense does not appear on his record. In support of his petition, he furnished a letter from his attorney, notifying him that, after much negotiating, the prosecuting attorney agreed to dismiss Petitioner’s driving while intoxicated charge and to amend his speeding ticket to the reduced charge of illegal parking. In exchange for his guilty plea to illegal parking, Petitioner was ordered to pay a $375.50 fine and $24.50 court costs. e. On 26 November 2018, Petitioner was issued enclosure (4), a Page 11 entry counseling him that he was being processed for administrative separation by reason of a pattern of misconduct. Ultimately, Petitioner was not administratively separated. Per reference (b), Page 11 entries that concern administrative discharge will not remain in a member’s OMPF if they do not, upon final review, result in discharge or reduction. f. On 7 January 2019, Petitioner was issued enclosure (5), a 6105 Page 11 entry counseling him for violation of Article 86 (absent without leave) and Article 92 (failure to obey order or regulation) after he failed to assume his post as the duty rover and for being admittedly too intoxicated to stand duty. The entry also noted that the duty roster was e-mailed to Petitioner on 21 November 2018. Petitioner acknowledged (signed) the entry and chose not to submit written rebuttal. g. Petitioner contends that he did not know he had duty, and therefore he could not be guilty of violation of Article 86 or Article 92, UCMJ. He asserts that his command failed to follow its own procedures for notifying Marines that they had duty by not posting the duty roster on the read-board and by not having Marines initial after their names on the duty roster, indicating they had acknowledged scheduled duty. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants partial relief. In this regard, the Board noted that Petitioner was not administratively separated, and pursuant to reference (b), his 26 November 2017 Page 11 entry is now in error and unjust. Although not requested by Petitioner, the Board concluded that this Page 11 entry shall be removed from his OMPF. With regard to Petitioner’s contention that his 5 December 2017 NJP was not based on facts, the Board determined that a reduction of charges due to Petitioner’s plea agreement does not equate to innocence. Additionally, the Board determined that the civilian court’s reduction of the charges was not binding on his commanding officer, who had independent authority to determine whether misconduct was committed. The Board thus concluded that the contested 23 October 2017 Page 11 entry and 5 December 2017 UPB entry do not constitute probable material error or injustice warranting removal from Petitioner’s OMPF. With regard to Petitioner’s contention that he was not guilty of violation of Article 86 or Article 92, UCMJ, the Board determined this contention is without merit. The Board noted that the duty roster was e-mailed to Petitioner, and that he was ultimately responsible for reporting for his scheduled duty. Additionally, the Board determined that both enclosures (2) and (5), Petitioner’s contested Page 11 entries, satisfied the paragraph 6105 counseling requirements detailed in MCO 1900.16 (MARCORSEPMAN). Specifically, the Board noted that the entries provided written notification concerning Petitioner’s deficiencies, specific recommendations for corrective action indicating available assistance, 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 acknowledged the counseling entries and chose not to submit a written rebuttal to either. The Board thus concluded that his 23 October 2017 and 7 January 2019 Page 11 entries shall remain in Petitioner’s OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by removing his 26 November 2018 Page 11 entry at enclosure (4) from his OMPF. Petitioner’s naval record be corrected by removing duplicate Page 11 entries from his OMPF. No further relief 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. Sincerely,