From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) 10 U.S.C. § 1552 (b) MCO 5600.16A W/CH 6 (c) MCO 1610.7 (d) MCO P1400.32D W/CH 2 Encl: (1) DD Form 149 w/enclosures (2) Petitioner’s UPB entry of 29 Jan 18 (3) Administrative Remarks (Page 11) 6105 counseling entry of 29 Jan 18 and promotion restriction counseling entry of 29 Jan 18 (4) Fitness Report for the reporting period 1 Jan 18 to 29 Jan 18 (5) HQMC memo 1610 MMRP-13/PERB of 10 Apr 19 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 unit punishment book documenting his 29 January 2018 nonjudicial punishment (NJP), by removing his 29 January 2018 Administrative Remarks (Page 11) 6105 counseling entry, and by removing his fitness report for the reporting period 1 January 2018 to 29 January 2018. Although not specifically requested by Petitioner, the Board also considered removal of his 29 January 2018 Page 11 promotion restriction entry. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 30 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. 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. Pursuant to reference (b), unit punishment book (UPB) entries document and record NJP (including the offenses, punishment imposed, date imposed, etcetera, and whether the Marine was properly advised of his rights and the offenses alleged, whether he accepted NJP, and whether he appealed). UPB entries are required to be maintained in a Marine’s official military personnel file (OMPF). c. On 29 January 2018, Petitioner received NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey order or regulation) for operating a motor vehicle while under the influence of alcohol. The NJP was documented in his UPB (enclosure (2)). Petitioner was advised of his rights, to include his right to consult counsel and his right to refuse NJP and demand trial by court martial in lieu of NJP. He agreed to accept NJP subject to his right to appeal. Petitioner was awarded forfeiture of pay per month for two months, for a total of $2,304.00, and restriction for 60 days. d. On 29 January 2018, Petitioner was issued enclosure (3), an Administrative Remarks (Page 11) having two counseling entries. The first is a 6105 entry counseling him for violation of the UCMJ, Article 92 (failure to obey an order or regulation) for operating a motor vehicle while under the influence of alcohol, and for receiving battalion-level NJP. The second counseled and advised him that he had been placed in a promotion restriction status due to his battalion-level NJP. Petitioner acknowledged (signed) the entries and chose to submit a written rebuttal. In his rebuttal, he claimed that he pleaded not guilty at office hours, and he was fighting the charges in civil court, that he served honorably for over nine years and eight months, and that the NJP would not diminish his desire to be a Marine or leader of Marines. e. Pursuant to reference (c), Petitioner was issued enclosure (4) a Directed by the Commandant of the Marine Corps (DC) fitness report for the reporting period 1 January 2018 to 29 January 2018 due to his 29 January 2018 NJP. The Third Officer Sighter (3OS) comments include the entries in question: “[h]e goes on to say he was never found guilty in a civilian court, yet he accepted NJP” and “[h]e also had the opportunity to appeal that NJP and did not.” f. On 2 February 2018, Petitioner appealed his NJP, claiming that he pleaded “not guilty” to the charge of violation of Article 92, UCMJ, and that he was also pleading “not guilty” to his ongoing civil charges. Petitioner appealed on the basis that the punishment was unjust based on his purported honorable service and being the only staff noncommissioned officer (SNCO) to receive restriction to the E-5 and below barracks, which was also impeding his recovery from a back injury. He also appealed because he had not been found guilty in civil court, and because he had no one to maintain his household in his absence. The Commanding General, , considered Petitioner’s appeal and found that the proceedings were correct in law and fact and that the punishment awarded was not unjust or disproportionate. Petitioner’s appeal was therefore denied on 23 February 2018. g. Petitioner contends that he was subject to NJP for a “suspicion of driving under the influence.” He asserts that, due to his permanent change of station move, he was advised to accept NJP, plead not guilty, execute his orders, then appeal the NJP if found not guilty [in his civil court case] at his next command. Petitioner purports that, on 22 April 2019, his civil charges were dismissed by the state of California, that he incurred no penalties, and that his arrest entry has been sealed by the State. Petitioner further contends that the 3OS falsely stated that he accepted NJP as an admittance to being guilty, and that he did not appeal his NJP, when in fact, he pleaded not guilty at his office hours hearing and appealed his NJP. h. On 22 April 2019, the Superior Court of , County of Division, issued an order granting Petitioner restorative relief pursuant to Penal Code Section 1001.80. The court found that Petitioner performed satisfactorily during his period of diversion and that he successfully completed the diversion program. Therefore, the court, in part, ordered criminal charges dismissed and the arrest upon which the diversion was based deemed to have never occurred. i. An advisory opinion (AO) at enclosure (5), furnished by the Headquarters Marine Corps Performance Evaluation Review Board (PERB), determined that Petitioner’s contested fitness report did contain a correctable administrative error. The PERB, therefore, modified the report by removing the following 3OS comments from Section B of the addendum page: “He also had the opportunity to appeal that NJP and did not.” The AO thus recommended that Petitioner’s fitness report, as modified by the PERB, remain in his OMPF. In reaching this decision, the PERB determined that the fact that Petitioner was possibly pending legal action by civilian authority did not preclude administrative or legal action by his command. The PERB also determined that Petitioner did in fact accept NJP, subject to his right to appeal the NJP, and that he exercised his right to do so. j. Per reference (d), promotion restrictions are not punitive in nature and should not be used as such; they are intended to allow commanders a minimum period of time to observe a Marine whose conduct or performance has given the commander and/or the Commandant of the Marine Corps reason to doubt whether the Marine is ready to assume the duties and responsibilities of the next higher grade. Reference (d) requires a “not recommended for promotion” Page 11 entry for each month/quarter a Marine is not recommended for promotion to the grades of private first class to sergeant (emphasis added). Also, when a commander determines that a Marine who has been selected for promotion by a Headquarters Marine Corps SNCO selection board is unqualified for promotion, he will immediately notify the Commandant of the Marine Corps (MMPR-2) . . . that he intends to recommend delay or revocation of the Marine’s certificate of appointment. Here, Petitioner was neither in a grade of private first class to sergeant, nor was he selected for promotion by a Headquarters Marine Corps SNCO selection board. 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 the Page 11 entry at enclosure (3) contains a promotion-restriction entry that was not issued in compliance with reference (d) guidance. The Board thus concluded that Petitioner’s promotion-restriction entry shall be redacted from the Page 11 at enclosure (3). The Board was not willing to remove Petitioner’s 29 January 2018 UPB. The Board noted that Petitioner was appraised of his rights prior to the imposition of NJP, and that, contrary to his contention that he pleaded “not guilty,” Petitioner did, in fact, accept NJP, subject to his right to appeal. Petitioner did exercise his right to appeal, and the appeal authority found that the punishment awarded was not unjust or disproportionate; his appeal was denied. The Board noted that Petitioner’s civilian charges were dismissed after he performed satisfactorily during a period of diversion and after he successfully completed the diversion program. The Board determined that dismissal of civil charges does not equate to innocence. Additionally, the Board determined that the civilian court’s dismissal of the charges was not binding on Petitioner’s commanding officer (CO), who had independent authority to determine whether misconduct was committed. The Board thus concluded that the contested UPB entry does not constitute probable material error or injustice warranting removal from Petitioner’s OMPF. The Board also determined that Petitioner’s 6105 counseling entry creates a permanent record of a matter his CO deemed significant enough to document, and his evidence did not show 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 his 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. Petitioner was afforded the opportunity to rebut the counseling, and his rebuttal is included in his OMPF. The Board thus concluded that the Page 11 entry does not constitute probable material error or injustice warranting its removal from Petitioner’s OMPF. The Board noted that the PERB corrected Petitioner’s contested fitness report by redacting a factually inaccurate comment made by the 3OS. The Board substantially concurred with the AO that the contested fitness report, as modified by the PERB, is administratively and procedurally correct as written and filed, and removal from Petitioner’s OMPF is not warranted. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s record be corrected by redacting his 29 January 2018 promotion-restriction entry from his Page 11 at enclosure (3). The Page 11 with his 29 January 2018 6105 counseling entry shall remain in his OMPF. 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. Sincerely,