From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FIRST XXX-XX-8672, USMC Ref: (a) 10 U.S.C. § 1552 (b) MCO 1610.7A Encl: (1) DD Form 149 w/enclosures (2) CI Report 5830 LEG of 1 Dec 16 (3) Administrative Remarks (Page 11) of 4 Dec 16 (4) Fitness Report for the reporting period 1 Jul 16 to 5 Dec 16 (5) CG, ltr 1330 CG of 15 Nov 17 (6) ltr of 17 Jul 18 (7) HQMC memo 1610 MMRP-30 of 23 Apr 19 (8) HQMC memo 1610 MMRP-13/PERB of 5 Jul 19 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing an adverse fitness report for the reporting period 1 July 2016 to 5 December 2016; removing all other references to adverse fitness report or the underlying events of 10 November 2016 upon which the adverse report was based, including a 4 December 2016 Administrative Remarks (Page 11) 6105 counseling entry; and by sealing the command investigation into the matters upon which the adverse fitness report is based. 2. The Board reviewed Petitioner’s allegations of error and injustice on 22 September 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, finds 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. On 10 November 2016, multiple liberty groups from and congregated at a beach bar outside the in At the bar, there were Marines of various grades, including officers, non-commissioned officers and junior enlisted Marines. As it was the Marine Corps Birthday, Petitioner purchased alcoholic beverages for those at the bar, none of whom was under the legal drinking age. When a junior Marine ( stated that she could “use a shower” after spending the day at the beach, the Petitioner offered his room key to her, along with her liberty group, to use his shower. liberty group left the beach bar at approximately 1830. Petitioner had no other contact with or other junior Marines. c. Subsequent to the events of 10 November 2016, rumors arose of inappropriate conduct by Petitioner with junior Marines. As a result, a command investigation (CI) was initiated on 16 November 2016, to investigate the facts and circumstances surrounding suspected inappropriate conduct by Petitioner with junior female Marines during a liberty port visit in . The CI was finalized 1 December 2016. See enclosure (2). Petitioner was subsequently issued a Page 11 6105 counseling him for violation of U.S. Navy Regulation 1165, Fraternization. See enclosure (3). Specifically, enclosure (3) stated that Petitioner, while on liberty in , drank alcoholic beverages with junior Marines, gave a female junior Marine his hotel room key so that she could use his shower, and while onboard the made comments containing sexual innuendos to a female lance corporal serving on mess duty. Petitioner also received an adverse fitness report for the reporting period 1 July 2016 to 5 December 2016, due to being relieved of his position as Company First Sergeant for demonstrating poor judgment and failing to set a positive example for his Marines to follow. See enclosure (4). Petitioner submitted a rebuttal to both the fitness report and the Page 11 6105 counseling. d. Petitioner argues that the CI did not establish inappropriate behavior by the Petitioner. Moreover, he claims it is incomplete, rife with error and did not meet the standard of completeness required by the Manual of the Judge Advocate General of the Navy (JAGMAN). Petitioner notes that on 10 November 2016, his Company Commander, who is the Reporting Senior (RS) for both the contested fitness report and the CI investigating officer (IO), was present at the beach bar at the time of the incident in question and did not see fit to intervene or raise any concern regarding Petitioner’s conduct. The IO, however, did not mention that he was at the bar in his report, nor did he interview any of the officers who were at the bar when the alleged improper behavior occurred. Petitioner noted numerous contradictions in the CI, to include the fact that told the IO that she did not feel that Petitioner’s offer of using his hotel room shower was unprofessional nor did it make her feel uncomfortable, and that Petitioner was “nothing but professional and respectful never saying anything disrespectful or vulgar.” Petitioner states that he never made any lewd or inappropriate comments to junior Marines, that this allegation is uncorroborated, and that none of the individuals interviewed for the CI heard him make any inappropriate comments. Petitioner notes that the lance corporal who alleges that Petitioner made inappropriate comments to her at the chief’s mess while on-board the was not able to provide any details regarding the language used nor the dates and times of the alleged events, and that she only discussed this with the IO during a second interview on 23 November 2016. Petitioner, who had submitted a statement to the IO on 16 November 2016, contends that he had no opportunity to rebut these allegations before the CI report was submitted. e. Petitioner alleges that the inadequate CI prompted him to be relieved from his position as First Sergeant, and to receive an adverse Page 11 6105 entry and fitness report. Petitioner included three letters of support with his application, to include letters from the Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, and from the Sergeant Major, See enclosures (5) and (6), respectively. f. As part of its review process, the Board received an advisory opinion (AO) from Headquarters, Marine Corps (MMRP-30). The AO described the CI as “the most incomplete and incomprehensive reviewed to date” (emphasis added). It further stated “[t]he fact that the IO essentially absolved any unit officer involvement from investigative consideration, despite the fact that several were witnesses to some of the events leading up to the purported [Petitioner] transgressions, appears suspect and incomplete.” The AO further noted 15 significant discrepancies regarding the CI and the fitness report, and found that the fitness report was constructed “with an eye to buttressing the findings of a less than robust CI.” Specifically, the AO stated that the fitness report embellished and “cherry-picked” certain aspects of Petitioner’s behavior. See enclosure (7). g. On 5 July 2019, after reviewing enclosures (1), (4), and (7), the majority opinion of the Headquarters, Marine Corps, Performance Evaluation Review Board (PERB), was that Petitioner did not demonstrate probable material error, substantive inaccuracy, or injustice warranting removal of his fitness report in accordance with reference (b). Accordingly, the PERB directed that the contested report be retained as filed. See enclosure (8). MAJORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Majority of the Board found the existence of an injustice warranting relief. In this regard, the Majority noted that Petitioner provided an extensive amount of evidence to contradict the CI findings upon which Petitioner’s relief for cause, adverse fitness report, and Page 11 6105 counseling was based. The Majority further noted that the allegation regarding Petitioner making lewd comments was not corroborated. The Majority also concurred with the AO and determined that the fitness report embellished certain aspects of the CI and included false statements. The Majority concurred with Petitioner that the CI did not meet the standard of completeness and should not be used as justification for a Page 11 6105 counseling, relief for cause, or the adverse fitness report. The Board thus concluded that Petitioner’s record should be corrected by sealing the CI and by removing the contested fitness report, Page 11 6105 counseling, and all documents relating to the underlying events from his record. MAJORITY RECOMMENDATION: In view of the above, the Majority recommends that the following corrective actions be taken on Petitioner’s naval service record: That Petitioner’s adverse fitness report for the period 1 July 2016 to 5 December 2016 be removed from his official military personnel file (OMPF). That Petitioner’s 4 December 2016 Page 11 6105 counseling entry, and any reference to the underlying events of that entry be removed from his OMPF. That the subject CI (enclosure (2)) be sealed. That no further relief be granted. MINORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Minority of the Board concurred with the PERB decision and found no error or injustice in Petitioner’s adverse fitness report. The Minority believed that Petitioner exhibited poor judgment for a senior enlisted member, that his actions were prejudicial to good order and discipline, and that his commanding officer acted within his discretionary authority to relieve him for cause and to issue the Page 11 6105 counseling. Accordingly, the Minority found no error or injustice in the Petitioner’s fitness report, relief for cause, and Page 11 6105 counseling. MINORITY RECOMMENDATION: In view of the above, the Minority recommends that no corrective action be taken on Petitioner’s naval service record. 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. The foregoing action of the Board is submitted for your review and action. 12/29/2020 Executive Director MAJORITY Recommendation Approved (Full Relief) 1/26/2021 Assistant General Counsel (M&RA)