Docket No: 4279-19      
Ref: Signature date 

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 that 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 16 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 your 12 December 2017 Administrative Remarks (Page 11) 6105 counseling entry from your official military personnel file (OMPF).  The Board considered your contentions that the Page 11 entry was not justified, as the alleged misconduct was based on statements taken during a preliminary inquiry (PI) while you were away on temporary additional duty (TAD) and you were not given the opportunity to defend against allegations or seek legal counsel.  You assert that you were informed about the investigation on 14 November 2017, when the investigating officer asked you via telephone to sign and e-mail back the Rights Warning Procedure/Waiver Certificate form.  You also argue that your annual fitness report for the reporting period 23 February 2017 to 30 June 2017 was above your reporting senior’s (RS) average, but the subsequent report for 1 July 2017 to 26 September 2017 was below your RS’s average, however no counselingnor justification was provided for the grading. 

The Board noted that, following a PI into your alleged misconduct, your commanding officer (CO), on 12 December 2017, issued a Page 11 6105 entry counseling you regarding your poor decision making, lack of good judgement, promulgation of a toxic work environment that resulted in a hostile command climate within your platoon, and unacceptable conduct for a Marine staff non-commissioned officer (SNCO).  You acknowledged (signed) the entry and chose to submit a written rebuttal. 

With regard to your contention that you were not given the opportunity to defend against allegations or seek legal counsel, the Board noted that you were not charged with violating the Uniform Code of Military Justice, but instead, your CO determined, based upon a preponderance of the evidence, that you demonstrated poor judgement and unacceptable behavior for a Marine SNCO, and that your CO was within his discretionary authority to issue the Page 11 entry. 
Moreover, the Board determined that the counseling entry creates a permanent record of a matter your CO deemed significant enough to document, and your evidence did not prove otherwise.  The Board also 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 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.  You were afforded the opportunity to rebut the counseling.  The Board noted that you selected that you would submit a rebuttal, but it is not in your service record. However, the Board concluded that the fact that there is no rebuttal in your OMPF does not constitute probable material error or injustice warranting corrective action because your fitness report statement specifically addresses the deficiencies described in the 6105. 

The Board did not consider your implicit allegations of error or injustice regarding your fitness report because you did not first exhaust all available administrative remedies by petitioning the Marine Corps Performance Evaluation Review Board (PERB) before petitioning this Board. 

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.