DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 669-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) Manual for Courts-Martial, United States (2012 edition) Encl: (1) DD Form 149 w/attachments (2) Petitioner’s UPB entry of 25 Jul 18 (3) Administrative Remarks (Page 11) 6105 and promotion-restriction counseling[s] of 25 Jul 18 1. Pursuant to the provisions of 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 25 July 2018 non-judicial punishment (NJP). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 26 November 2019 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 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. Petitioner, while a student at received NJP on 25 July 2018 for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey a lawful order or regulation) for consuming alcohol while under the legal drinking age, and Article 123 (forgery) for using a fake driver’s license. Petitioner was advised of his right to consult counsel and of his right to demand trial by court-martial in lieu of NJP but chose not to exercise these rights. Petitioner accepted NJP subject to appeal, but did not appeal. Petitioner was awarded a reduction in grade to private/E-1 (suspended for six months), 45 days’ restriction and 45 days’ extra duties, to be run concurrently. The NJP was documented in a unit punishment book (UPB) (enclosure (2)). Also on 25 July 2018, Petitioner was issued enclosure (3), an Administrative Remarks (Page 11) 6105 counseling, which identified deficiencies for his violations of Articles 92 and 123, UCMJ, and a promotion-restriction counseling entry. Petitioner acknowledged each counseling and did not submit a rebuttal to either. c. On 15 August 2018, Petitioner transferred from his unit and was joined with the 1st Marine Division. On 12 September 2018, the commanding officer (CO) who imposed Petitioner’s NJP requested that Petitioner’s new CO set aside his NJP. In reaching this decision, the CO, after careful review of new information, determined that he would have considered a lesser punishment while still holding Petitioner accountable. Petitioner’s former CO requested setting aside the NJP to allow Petitioner the opportunity to continue his career “without the negative cloud of NJP in his past.” On 14 December 2018, Petitioner’s current CO concurred with the set-aside. The NJP was removed from the Marine Corps Total Force System (MCTFS), however, the UPB and Page 11 entries at enclosures (2) and (3) respectively, remain in Petitioner’s official military personnel file (OMPF). d. Pursuant to reference (b), “Setting aside is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. The non-judicial punishment authority who imposed punishment, the commander who imposes non-judicial punishment, or a successor in command may set aside punishment. The power to set aside punishments and restore rights, privileges, and property affected by the executed portion of a punishment should ordinarily be exercised only when the authority considering the case believes that, under all circumstances of the case, the punishment has resulted in clear injustice. Also, the power to set aside an executed punishment should ordinarily be exercised only within a reasonable time after the punishment has been executed. In this connection, 4 months is a reasonable time in the absence of unusual circumstances.” CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. In this regard, the Board noted that Petitioner’s former CO who imposed the 25 July 2018 NJP requested, after careful review of new information that Petitioner’s NJP be set aside to allow Petitioner the opportunity to continue his career “without the negative cloud of NJP in his past.” The Board noted the Petitioner’s NJP was removed from the MCTFS, however, his UPB and Page 11 entries were not removed from his OMPF. The Board determined that, based on Petitioner’s CO’s determination that the NJP is unjust, and his decision to set aside the NJP, that it is in error for the UPB and Page 11 counseling entries to remain in Petitioner’s OMPF. The Board concluded that Petitioner’s UPB and corresponding Page 11 counseling entries shall be removed from his OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner’s naval record be corrected by removing enclosure (2), his 25 July 2018 NJP and UPB entry. Petitioner’s naval record be corrected by removing enclosure (3), his Page 11 with a 6105 counseling entry and a promotion-restriction counseling entry. Any material or entries inconsistent with or relating to theBoard’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and that no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. 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,