Docket No. 4220-19 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) (c) MCO 6100.13A (PFT/CFT) (d) MCO 1400.32D (PROMOTION MANUAL) Encl:(1) DD Form 149 w/enclosures of 17 Jan 19 (2) DD Form 149 w/enclosures of 8 Apr 19 (3) Administrative Remarks (Page 11) counseling entries of 13 Oct 17 (4) Petitioner’s rebuttal of 20 Oct 17 (5) Administrative Remarks (Page 11) counseling entries of 13 Oct 17 (6) Administrative Remarks (Page 11) 6105 counseling entry of 30 May 18 (7) Petitioner’s rebuttal of June 18 (8) HQMC memo 1070 JPL of 9 Oct19 1. Pursuant to 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 13 October 2017 and 30 May 2018 Administrative Remarks (Page 11) 6105 counseling entries and granting an Enlisted Remedial Selection Board (ERSB) to gunnery sergeant. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 2 June 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, as well as applicable statutes, regulations, and policies, and the 5 September 2019 and 9 October 2019 advisory opinions. 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 13 October 2017, Petitioner was issued enclosure (3), a Page 11 with two counseling entries. The first entry counseled him for misconduct – commission of a serious offense for “alleged violations” of Article 123 (forgery, making/altering) and Article 132 (fraud, forgery of signature), Uniform Code of Military Justice. In the second entry, Petitioner was advised that he was eligible but not recommended for promotion to gunnery sergeant. Petitioner was advised in both entries that he was being processed for administrative separation, and he acknowledged (signed) the entries and chose to submit a written rebuttal. In his rebuttal at enclosure (4), Petitioner maintained his innocence and claimed that the entry was factually deficient because he was deployed at the time of the alleged misconduct. c. On 13 October 2017, Petitioner was also issued enclosure (5), a Page 11 with two entries advising him of medical services available to him as a result of his pending administrative separation. d. On 23 May 2018, Petitioner went before an Administrative Discharge Board (ADB) regarding the allegations of forgery and fraud. The ADB did not substantiate the allegations of misconduct against Petitioner and recommended that he be retained in the Marine Corps. On 30 May 2018, the recommendation to retain Petitioner was approved by the Commanding General,. e. On 30 May 2018, Petitioner was issued enclosure (6), a 6105 Page 11 entry counseling him for failing the run portion of his physical fitness test (PFT) administered on 25 May 2018. Petitioner acknowledged (signed) the entry and chose to submit a written rebuttal. In his rebuttal at enclosure (7), Petitioner stated, in part, that he developed muscles spasms during the run portion of his PFT, which caused him to fail the run portion of the PFT. He also noted that he informed his command, to no avail, of his muscle spasms as soon as he finished his run, and upon receiving the counseling. f. Petitioner contends that his Page 11 counseling entries at enclosure (3) are in error and unjust because he was found “not guilty” of all charges and because he was approved for retention in the Marine Corps after his ADB. Petitioner contends that his Page 11 counseling entry at enclosure (6) is in error and unjust because he notified his command on two occasions of his injury, but that he was not advised to go seek medical assistance. He also asserts that he passed a PFT that was conducted less than a week after his failed PFT, with a five-minute improvement on the 3-mile run. g. The advisory opinion (AO) at enclosure (8), furnished by Headquarters, Marine Corps (JPL) noted that Petitioner has satisfied his burden to demonstrate the existence of a probable material error or injustice warranting removal of all of his counseling entries that were issued on 13 October 2017. In this regard, the AO noted that, in accordance with reference (b), a command should “not make entries on Page 11 which concern administrative discharge or competency review proceedings if they do not, upon final review, result in discharge or reduction.” The AO determined that all four of Petitioner’s 13 October 2017 counselings were issued as a result of his pending administrative separation, and that ultimately, he was not administratively separated. The AO, however, recommended denying Petitioner’s request to remove his 30 May 2018 Page 11 counseling entry. The AO noted that Petitioner did not challenge that he failed his PFT, but seeks to excuse the score due to the medical condition (leg cramps) that he allegedly experienced during the PFT. Additionally, he failed to provide any medical evidence of his inability to complete the PFT, which is required to obtain a waiver for the failed PFT. The AO further noted that, in accordance with reference (c) “[w]hen a Marine is unable to complete a PFT/CFT due to an underlying physical or medical condition, an evaluation by a Privileged Health Care Provider (PHCP) must be conducted . . . A medical determination is required to excuse a Marine from participating in a particular event or an entire test . . .” JPL determined that Petitioner has not demonstrated that this Page 11 entry is erroneous or equates to an injustice in his service record, and that it is presumed to be correct and issued for a legitimate command purpose. JPL also determined that Petitioner provided no evidence that subsequently passing a PFT justifies or requires the removal of the Page 11 entry regarding the failed PFT. With regard to Petitioner’s request for an ERSB, the AO noted that requests for a remedial selection board must be submitted by Petitioner in accordance with the specific procedures of paragraph 3604 of reference (d), which include the submission of a remedial selection board package to MMPR-2 detailing the justification for such a board. The AO determined that Petitioner did not indicate that he had taken the required steps to obtain a remedial selection board; he has not exhausted his administrative remedies and therefore this issue is not ripe for the Board’s consideration. 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 partial relief. In this regard, the Board substantially concurred with the AO and determined that enclosures (3) through (5), are in error and unjust because the two Page 11s were issued due to Petitioner’s pending administrative separation, and now that he has been retained, maintaining the Page 11s (and his rebuttal) in his official military personnel file (OMPF) is in violation of reference (b). The Board thus concluded that both Page 11s issued on 13 October 2017, and Petitioner’s corresponding rebuttal, shall be removed from his OMPF. The Board concurred with the AO that Petitioner has not demonstrated that enclosure (6), his 30 May 2018 Page 11 entry is erroneous or equates to an injustice in his service record. The Board also noted that Petitioner provided no evidence that subsequently passing a PFT justifies or requires the removal of the Page 11 entry regarding the failed PFT. The Board thus concluded that Petitioner’s 30 May2018 Page 11 shall remain in his OMPF. The Board also concurred with the AO that Petitioner did not indicate that he had taken the required steps, pursuant to reference (d), to obtain an ERSB. The Board thus concluded that he has not exhausted his administrative remedies and therefore this issue is not ripe for the Board’s consideration. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s record be corrected by removing enclosures (3) and (4), his 13 October 2017 Page 11 entry containing a 6105 counseling regarding his alleged violations of Article 123 and Article 132, Uniform Code of Military Justice, and his promotion-restriction counseling, and his 20 October 2017 rebuttal, respectively. Petitioner’s record be corrected by removing enclosure (5), his 13 October 2917 Page 11 entry containing two entries regarding medical services. 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. 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.