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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. A three-member panel of the Board, sitting in executive session, considered your application on 28 July 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 also considered the 2 March 2020 advisory opinion (AO) furnished by Headquarters Marine Corps Military Personnel Law Branch (JPL), as well as your rebuttal. The Board carefully considered your request to remove from your official military personnel file (OMPF) your 19 December 2017 Administrative Remarks (Page 11) 6105 counseling and rebuttal, the Unit Punishment Book (UPB) documenting your 21 May 2018 nonjudicial punishment (NJP), and any evidence of your 31 August 2018 summary court-martial. You also requested your Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected to reflect a Separation Program Designator (SPD) code and narrative reason for separation as “sufficient service for retirement” vice “unacceptable conduct.” The Board noted that, a command investigation (CI) at your husband’s command revealed that you were engaged in an inappropriate relationship with another gunnery sergeant (GySgt) in your husband’s squadron. Consequently, on 19 December 2017, you were issued a Page 11 counseling for having an inappropriate relationship with the GySgt, and you were advised to refrain from any misconduct or unprofessional relationship that may affect the good order and discipline of the unit or affect your duties as a staff noncommissioned officer (SNCO). You acknowledged the entry and chose to submit a written rebuttal. In your 28 December 2017 rebuttal, you complained, in part, that your husband had given his command doctored e-mails from your e-mail account, and that because the investigation was conducted by your husband’s command, you were not able to fully participate in the investigation. On 28 January 2018, your command initiated its own preliminary inquiry (PI) into the alleged inappropriate relationship between you and the GySgt. The PI revealed that the CI conducted at your husband’s command had found evidence of a lengthy inappropriate relationship between you and the GySgt. Based on the PI findings, a CI was recommended. On 7 March 2018, your command’s CI concluded, in part, that beginning in 2013, you and the GySgt entered into an inappropriate relationship; that in September of 2017, you and the GySgt went on a cruise together with two of your friends; that you falsified your leave request in order to conceal the fact that you were going on a cruise; and that you lied to the CI investigating officer three times during the interview that he conducted, by denying that the GySgt went on the cruise. Accordingly, on 21 May 2018, you received NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 107 (False Official Statement) and Article 134 (Inappropriate Relationship). The basis for the NJP were statements you made to the investigating officer. You were punished with forfeitures of pay and restriction. Your restriction was suspended, but the suspension was vacated on 8 August 2018, after you testified in the special court-martial of the GySgt. Also on 21 May 2018, you were issued a Page 11 6105 counseling you for receiving NJP and a promotion restriction entry. You acknowledged each entry and did not submit a written rebuttal to either. Sometime before 12 June 2018, the GySgt had a charge of violating Article 107 (False Official Statement), UCMJ, and was referred to a special court-martial. The GySgt was accused of denying to his command’s investigating officer that he went on a cruise with you and instead claimed that he was on leave in . On 12 June 2018, you testified during a motions hearing in the case of United States v. [GySgt], and you stated under oath that the GySgt was not on the cruise with you. On 18 July 2018, a charge of violation of Article 131 (Providing False Testimony) UCMJ, was referred against you. The charge had five specifications, all related to your testimony at the motions hearing that the GySgt did not go on a cruise with you and your friends, and that he did not stay in the same suite as you. On 30 July 2018, the GySgt entered into a pre-trial agreement with the government in which he agreed to plead guilty to the charge of Article 107 (False Official Statement). As a part of his pre-trial agreement, the GySgt submitted a stipulation of fact, in which he admitted to having a personal and professional relationship with you beginning in 2012. He also admitted to going on a cruise with you in September of 2017 and staying in the same stateroom with you. On 23 August 2018, you entered into a pre-trial agreement in which you agreed to plead guilty to the charge and all of its specifications in exchange for referral of your charges to a summary court-martial. At your summary court-martial on 31 August 2018, you pled guilty, in accordance with the terms of your pre-trial agreement and were found guilty by the summary court-martial officer. You were sentenced to reduction to the rank of staff sergeant (E-6). You did not submit any matters in clemency. On 28 March 2019, you were released from active duty and transferred to the Fleet Marine Corps Reserve. The narrative reason for your separation is listed on your DD Form 214 as “unacceptable conduct.” The Board considered your contention that your 19 December 2017 Page 11 was based on illegally obtained e-mails by your spouse that were altered, and then given to his command as evidence for an investigation of the GySgt at the same command, and that the Page 11 was given to prevent you from getting promoted. You also contend that you received NJP for the same offense that was documented in your Page 11 entry, and that the investigating officer’s findings of fact were based on incorrect information. You contend that you were charged, found guilty and twice punished for an inappropriate relationship, and although the Staff Judge Advocate recommended coinciding punishments, the other alleged participant (GySgt) was not charged due to lack of evidence, but you were unfairly reduced in grade. You also assert that your punishment is documented twice in your OMPF in order to make it appear that you had a pattern of misconduct. You argue that your command required you to return from terminal leave and placed you on restriction pending your summary court-martial, and that your command’s undue influence were based on an assumption that you were guilty. The Board substantially concurred with the AO that your allegations against your spouse are not relevant in this case. The fact remains that the GySgt submitted a sworn stipulation of fact to the court admitting to the relationship with you, and that he went on the cruise with you and stayed in your suite. There are credit card receipts that prove that the GySgt was on the cruise with you and that you stayed in the same suite. The Board noted that both commands found that there was sufficient evidence not only that you had an inappropriate relationship with the GySgt, but also that you testified, under oath, untruthfully about that relationship. Your assertions that your ex-husband instigated the investigation and then lied about your relationship with the GySgt to investigators is ultimately irrelevant given the quantity of credible evidence against you. The Board also concurred with the AO’s analysis regarding your assertion that you were charged at a court-martial because the GySgt was similarly charged. The AO noted that there is nothing that prevents a convening authority from considering the charges and sentence of a co-accused when deciding upon the appropriate disposition in a case. The Board noted that you were charged at a court-martial after you received NJP for your inappropriate relationship with the GySgt and then testified falsely in support of the GySgt at a motions hearing in his case. The AO opined, and the Board concurred, that it is certainly appropriate for a commander to consider the fact that lesser forms of punishment failed to rehabilitate you when determining that a court martial was appropriate in this case. With regard to your belief that you would receive the same punishment as the GySgt, and therefore had protection against reduction in grade at your summary court-martial, the Board again concurred with the AO and determined that there is no basis to your claim that you had protection against reduction, or even that you mistakenly believed that you did. Specifically, the pre-trial agreement that you signed on 23 August 2018 specifically states that reduction may be approved as adjudged. It also includes a paragraph that states that the written agreement contains all of the conditions and understandings of both yourself and the government and that there are no other agreements, written, oral, or implied. Your attorney specified in an e-mail to you on 1 August 2018, that “we can submit evidence on your behalf during the sentencing case and ask the summary court-martial officer to not reduce you in rank.” The AO noted that this clearly indicates that you were informed by your attorney that your pre-trial agreement would not include protection against reduction. With regard to your request to correct your DD Form 214, the Board noted that your separation code of RNCl is utilized when voluntary retirement is authorized and a member has performed acts including moral or professional dereliction. Because your pre-trial agreement stated that you would not be processed for administrative separation, but rather would be allowed to request retirement, your retirement went from entirely voluntary to voluntary after acts of unacceptable conduct. The Board thus concluded that the SPD code and narrative reason for separation listed on your DD Form 214 is appropriate given the circumstances of your retirement. 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.