DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7166-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 1900.16 (MARCORSEPMAN) (c) MCO P1070.12K W/CH 1 (IRAM) Encl: (1) DD Form 149 w/attachments (2) Administrative Remarks (Page 11) 6105 counseling of 16 Apr 19 w/rebuttal (undated) (3) OIC, Legal Assistance ltr 1000-9 LAO of 15 Jul 19 (4) HQMC memo 1070 Sect of 20 Dec 19 1. Pursuant to 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 16 April 2019 Administrative Remarks (Page 11) 6105 counseling entry. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 21 January 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, as well as 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. On 16 April 2019, Petitioner was issued enclosure (2), a Page 11 6105 counseling him for entering a contract with a sergeant to reside at his off-base residence while he was away on deployment. Petitioner’s commanding officer (CO) determined that the contract puts Petitioner in a position to have undue influence over the sergeant and gives the impression of an unduly familiar relationship. Petitioner acknowledged (signed) the counseling and chose to make a rebuttal statement. c. Petitioner contends that the Page 11 was issued for entering into a contractual agreement with a sergeant, despite the steps he took to eliminate the perception of a policy, order, or Uniform Code of Military Justice (UCMJ) violation. Specifically, he purportedly consulted his CO, and he consulted with an attorney with the Legal Assistance Office to ensure he could enter into an agreement with a sergeant. Petitioner also asserts that after complying with the Legal Officer’s guidance, the contract was legally validated. Later, when he informed his next-higher echelon chain of command of this agreement, and at that time he was told not to enter the contract. Petitioner claims that he nullified the contract three days later, but was issued the Page 11 for entering the agreement and its perception of fraternization. Petitioner furnished enclosure (3), a statement from the officer-in-charge, legal assistance office, who verified that Petitioner sought legal advice prior to entering the contract. Based on the legal advice Petitioner received and acted on, the OIC recommends that the Board grant Petitioner’s request to remove the contested Page 11. d. An advisory opinion (AO) at enclosure (4) recommends Petitioner’s request be granted. The AO noted that prior to entering the agreement, Petitioner consulted his CO and sought legal counsel from the base legal office. Additionally, once Petitioner was advised by his higher headquarters that the perception associated with the contractual agreement was not in good taste, he nullified the contract immediately. The AO opined that, although the Page 11 is administratively and procedurally correct, pursuant to references (b) and (c), it is deemed unjust, and that Petitioner demonstrated good faith by consulting his CO and base legal prior to entering the contractual agreement. CONCLUSION Upon review and consideration of all the evidence of record, particularly the advocacy letter at enclosure (3), theBoard concluded that Petitioner’s request warrants relief. In this regard, the Board noted that Petitioner took reasonable measures to avoid any potential violation of orders, policy and the UCMJ by seeking out legal counsel and informing his CO prior to entering a contract with a sergeant. The Board determined that Petitioner entered into a contract with a sergeant only after it was cleared through his CO and legal counsel, and that he terminated the contract shortly after higher headquarters disapproved of the contract. The Board concluded that the Page 11 entry is unjust and that is shall be removed from Petitioner’s 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 16 April 2019 Page 11 6105 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.