DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 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 9 June 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 the 6 February 2017 Administrative Remarks (Page 11) 6105 counseling entry from your official military personnel file (OMPF). The Board considered your contentions that the counseling is based on material errors and abuses of discretion by your command and the Naval Criminal Investigative Service (NCIS) agent. Specifically, you assert the following: .your wife’s statement reveals how patently false the accusation of you being physically abusive or assaultive is; .the Criminal Investigative Division (CID) report and NCIS investigation creating suspicion were both legally insufficient and should never have been relied on; .the investigation failed to produce evidence that you did anything other than defend yourself; .the alleged victim, your wife was pressured throughout the investigation in attempts to persuade her into incriminating you; .your command would not permit your wife to spend time with you until she gave a statement; .the NCIS agent and your command unlawfully circumvented your Article 31(b) rights to obtain statements protected by law by using deception and lies; .the NCIS investigative agent committed further errors of discretion by disregarding critical facts rebutting the claim that you assaulted your wife; .the 911 call recording contradicts the written statement your wife gave to CID agents that evening; and .the prejudicial errors of fact, discretion, and law during the CID and NCIS investigations render the findings legally insufficient. The Board also considered your contention that your counseling is a material injustice because it is inaccurate but remains in your permanent military file despite the harm already caused to your career. Specifically, you assert the following: .the counseling was based solely on the CID report and NCIS investigation which have been shown to be fatally flawed and legally insufficient on multiple grounds; .leaving a counseling statement in your permanent file which is patently inaccurate is the definition of injustice; .the harm of not removing the counseling statement caused you to fail selection to E-6. The Board noted that your commanding officer (CO) took no legal action against you, but instead, issued a Page 11 entry for the record. Page 11 entries are administrative in nature, are intended for matters forming an essential and permanent part of a Marine’s military history, and which will be useful to future commanders. The Board noted that your CO issued the 6105 Page 11 entry counseling you for your violation of the Uniform Code of Military Justice, Article 128 (assault) after a verbal altercation between you and your wife turned physical. The counseling notes that the NCIS investigated the incident, and that due to your immature and short temperament towards your spouse, you were issued a military protective order (MPO). Additionally, an Incident Determination Committee (IDC) hearing was convened. The IDC determined that two separate incidents of spousal abuse were substantiated. You acknowledged (signed) the entry and chose to submit a written rebuttal. In your 13 February 2017 rebuttal, you admit that you and your wife had a verbal disagreement that turned physical. You stated, however, that you only restrained her from assaulting you, and at no time did you turn any aggression towards her, and that you did not assault her. The Board determined that your contentions that the counseling is based on material errors and abuses of discretion by your command and the Naval Criminal Investigative Service (NCIS) agent lacks merit. Even assuming arguendo—but not conceding—that the investigations were flawed, as you contend, such error is harmless. In this regard, the Board noted that your CO’s determination was based upon a preponderance of the totality of the evidence, to include the transcript of the 911 call, the CID investigation, the NCIS investigation, and your rebuttal statement, which showed that you assaulted your wife, and that your CO was within his discretionary authority to issue the Page 11 entry. The Board also determined that the entry creates a permanent record of a matter your CO deemed significant enough to document, and your evidence did not show otherwise. The Board determined that the entry met the 6105 counseling requirements detailed in MCO 1900.16 (MARCORSEPMAN). Specifically, the Board noted that the entry provided written notification concerning your deficiencies, specific recommendations for corrective action indicating any assistance available, 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. You were afforded the opportunity to rebut the counseling, and your rebuttal was inserted into your OMPF. The Board thus concluded that the Page 11 entry does not constitute probable material error or injustice warranting its removal from your OMPF. With regard to your contention that your counseling is a material injustice because it is inaccurate but remains in your permanent military file despite the harm already caused to your career, the Board noted that you were afforded the opportunity to rebut the entry, and your rebuttal is included with the Page 11 entry in your OMPF. Additionally, the Board noted that you were selected and promoted to the grade of staff sergeant with the entry in your OMPF. The Board thus concluded that your contention that the entry is unjust is without merit. 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, 7/16/2020 Executive Director