DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5010-19 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) Cmdr, ltr 1920 CO of 13 Oct 16 (3) Counseling statement of 13 Oct 16 (4) CMC ltr 1920 JPL of 16 May 17 (5) Fitness report for the reporting period 1 June 2016 to 14 December 2016 1. Pursuant to the provisions of the reference, Petitioner, a commissioned officer 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 2016 Report of Misconduct (ROM), all derogatory material related to his ROM, and his fitness report for the reporting period 1 June 2016 to 14 December 2016 from his official military personnel file (OMPF). 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, 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 did not exhaust 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 report of misconduct and enclosure (3), a counseling entry for having an inappropriate relationship with another woman while still married. Petitioner contends that his ROM contains several administrative errors, incorrect statements, and false assumptions. Petitioner claims that the Naval Criminal Investigative Service (NCIS) investigation resulted from his ex-wife’s unfounded accusations and complaints from her friends. Petitioner also contends that his ex-wife’s retaliatory actions and manipulations painted a negative picture of him and his relationship with ( ), and his ex-wife declined to participate in a court-martial. Petitioner claims that his leadership acknowledged that he was going through a contentious divorce, and this should account for the fact that his ex-wife did all she could to discredit him. CONCLUSION Upon review and consideration of all the evidence of record, the Board determined that Petitioner’s request warrants relief. The Board reviewed Petitioner’s statement and the ROM endorsements by Petitioner’s chain of command. The Board noted that Petitioner’s ex-wife made numerous allegations that were unsubstantiated and determined to lack merit or sufficient evidence for disciplinary action. The Board also noted enclosure (4), the CMC letter terminating administrative proceedings against the Petitioner and closing his case because the information did not warrant processing for administrative separation. Based upon the totality of the available evidence, the Board determined that there was insufficient evidence to conclude that Petitioner had an inappropriate relationship while still married. Moreover, the Board determined that in accordance with Marine Corps Order (MCO) P1070.12K, the Marine Corps Individual Records Administration Manual, that retention of the ROM and other derogatory material is of no added value to future commanders, and the material would not be useful for the purpose of personnel planning, assignments, or retention. The Board thus concluded that Petitioner’s ROM shall be removed from his OMPF. Additionally all documents related to his ROM shall be removed from his OMPF. Concerning Petitioner’s request to remove his 13 October 2016 counseling entry, the Board noted that the counseling entry is not in error, however, the Board determine that the counseling entry was based on the same evidence that resulted in Petitioner’s ROM. Based upon the Board’s fore mentioned determination to remove Petitioner’s ROM, in the interest of justice Petitioner’s counseling entry shall be removed from his OMPF. Concerning Petitioner’s request to remove enclosure (5), his fitness report for the report period 1 June 2016 to 14 December 2016, the Board noted that Petitioner did not exhaust his administrative remedies by submitting a request to the Marine Corps Performance Evaluation Review Board (PERB). The Board also noted that the adverse nature of his contested fitness report was based upon his ROM and counseling entry. The Board determined that the removal of Petitioner’s ROM and counsel entry nullifies the basis for his adverse fitness report. The Board thus concluded that in the interest of justice, Petitioner’s fitness report 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 13 October 2016 Report of Misconduct and all documents related to his report of misconduct. Petitioner’s naval record be corrected by removing his 13 October 2016 counseling entry. Petitioner’s naval record be corrected by removing his fitness report for the reporting period 1 June 2016 to 14 December 2016. Any material or entries inconsistent with or relating to theBoard’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.