Docket No: 6567-19 
Ref: Signature Date 
 
 
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 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 29 September 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, and applicable statutes, regulations, and policies, as well as the 17 August 2019 advisory opinion (AO) furnished by the Headquarters, U.S. Marine Corps, Judge Advocate Division (JPL).  The AO was provided to you on 24 August 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 
 
The Board carefully considered your request to remove your unit punishment book (UPB) documenting your 11 January 2019 non-judicial punishment (NJP).  You also request to remove your associated Administrative Remarks (page 11) 6105 and promotion restriction counseling entries and fitness report for the reporting period 4 September 2018 to 14 January 2019.  The Board considered your contentions that there is a lack of supporting documentation that a violation of Article 111, Uniform Code of Military Justice (UCMJ) occurred, you received NJP before appearing in civil court, and your civil court charges were dropped.  You also contend that your counseling entries are dated “2018” before the allegations of Article 111, and your counseling entries contains the incorrect middle initial.  You claim that your Sergeant Major (SgtMaj) convinced you not to appeal your NJP. 
   
The Board, however, substantially concurred with the AO that you did not provide substantial evidence warranting removal of your UPB or counseling entries.  In this regard, the Board noted that you received NJP for violation of Article 111, UCMJ, for operating a vehicle with a blood alcohol content (BAC) of .13 percent.  The Board also noted that you were properly notified of your Article 31, UCMJ rights, you were afforded the opportunity to consult with a military lawyer, afforded your right to appeal the NJP, and you elected not to appeal your NJP.  The Board found no evidence that your SgtMaj advised you not to appeal your NJP and you provided none.  The Board determined that your Commanding Officer (CO) had sufficient evidence to find you guilty of violating Article 111, UCMJ, thus the finding of guilt during your NJP was just and within your CO’s discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2016 ed.).  The Board also determined that your CO was not required to delay your NJP pending your civil court appearance.  Moreover, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.   
 
Concerning your contested page 11 entries, the Board determined that your page 11 entries are valid and issued in accordance with the Marine Corps Individual Records and Administration Manual and the Marine Corps Enlisted Promotions Manual.  The Board also determined that your counseling entries incorrect dates and incorrect middle initials are administrative errors that are not of a substantive nature that warrants removal of your counseling entries.   
 
Concerning your request to remove your fitness report for the reporting period 4 September 2018 to 14 January 2019, the Board determined that you have not exhausted all administrative remedies available under existing law and regulations.  In accordance with the Performance Evaluation Appeals Manual, you must submit your request to the Marine Corps Performance Evaluation Review Board as the initial action agency for fitness report appeals.  The Board thus concluded that there is no probable material error or injustice warranting corrective action. 
  
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 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.   
 
Sincerely,