DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4372-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) NAVMC (118) Administrative Remarks (Page 11) 6105 of 16 Jan 18 (3) HQMC memo 1070 JPL of 18 Oct 19 1. Pursuant to the provisions the reference, Petitioner, a staff non-commissioned officer (SNCO) 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 16 January 2018, Administrative Remark (Page 11) 6105 counseling entry and rebuttal statement. 2. The Board 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 that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. The Board made the following findings: a. Petitioner was issued enclosure (2), a Page 11 entry counseling him for pursuing a relationship with a junior non-commissioned officer (NCO) in a manner that did not respect the difference in ranks. He contends that the investigation was not conducted correctly, he was not afforded legal counsel, or the opportunity to make a statement. Petitioner also contends that his command Sergeant Major’s (Sgt Maj’s) recommendation for punishment was biased, a personal vendetta, and constituted unlawful influence. Petitioner claims the messages the junior NCO received were sent by his wife, who was jealous and sent the messages using an account she created. Petitioner asserts that the counseling entry was vague, was not mentioned in his fitness report, and he received a Navy and Marine Corps Achievement Medal when he transferred. b. The advisory opinion (AO), enclosure (3) recommended that Petitioner’s Page 11 be retained in his record. The AO noted that Petitioner was advised of his Article 31, Uniform Code of Military Justice (UCMJ) rights on 14 December 2017, he acknowledged his rights, he invoked his right to counsel, and therefore, the Investigating Officer (IO) appropriately terminated the interview. Regarding Petitioner’s contention that he was not afforded counsel, the AO concluded that his contention lacks merit, Petitioner failed to obtain counsel due to his own inaction, and was not prevented from obtaining counsel. The AO determined that Petitioner’s contention of unlawful command influence occurs when a person subject to the UCMJ attempts to coerce or influence the action of a court-martial or any other military tribunal, therefore receiving a Page 11 is not equivalent to a court-martial or military tribunal, and thus would not apply to a Page 11. The AO also determined that the SgtMaj’s opinion that Petitioner was an average SNCO was not inappropriate with regard to the Page 11. Moreover, the AO concluded that Petitioner’s concerns about his SgtMaj should have been addressed at the time of the incident through other administrative measures. CONCLUSION Upon review and consideration of all the evidence of record, the Board found the existence of an injustice warranting corrective action. The Board noted the AO’s conclusion that Petitioner failed to provide substantial evidence demonstrating the existence of a material error or injustice, however, contrary to the AO, the Board determined that Petitioner’s Page 11 counseling entry should be removed. In this regard, the Board noted Petitioner’s rebuttal statement and found his denial of the accusations and record of events credible. Further, the Board found Petitioner’s character statements consistent with his reenlistment endorsement and the opinions of his chain of command. Regarding Petitioner’s contention that his SgtMaj was biased and applied unlawful influence, the Board found no evidence of bias and concurred with the AO that Petitioner’s concerns should have been addressed at the time of the incident through other administrative measures. The Board determined that based on the totality of Petitioner’s statement, character statements, and the fact that Petitioner’s reporting senior did not deem it significant to mention in Petitioner’s fitness report, the Board concluded that Petitioner’s Page 11 6105 counseling entry was unjust and shall be removed. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by removing his 16 January 2018 Administrative Remarks Page 11 6105 counseling entry and rebuttal statement. Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems/database entries that reference or discuss the material being expunged. 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. 6/4/2020