Docket No: 7336-19 
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.     
 
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 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.  
 
The Board carefully considered your request to remove your unit punishment book (UPB) documenting your 10 August 2017 non-judicial punishment (NJP) and your 10 August 2017 Administrative Remarks (page 11) 6105 and promotion restriction counseling entries. You also request to remove your fitness report for the reporting period 1 April 2017 to 10 August 2017.  The Board considered your contentions that your NJP was unjust because the officer involved in the incident was in civilian attire, did not conduct himself in the professional manner expected of a Lieutenant Colonel (LtCol), and he did not provide identification to prove his rank.  You also contend that a conflict of interest exist because the officer was a personal friend of the Commanding Officer (CO) that imposed your NJP.  You claim that you should not have been charged with disrespect because you had no way of knowing the officer’s rank or identity. 
   
The Board noted that you received NJP for violation of Article 89, Uniform Code of Military Justice (UCMJ), for disrespect toward a superior commissioned officer by telling him to “get the [. . .] out of your face” prior to knowing his name and rank.  After he identified himself you said “well I am sorry sir, you still need to get the […] out of my face.”  The Board also noted that you were properly notified of your Article 31, UCMJ rights, you accepted NJP, 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 determined that your CO’s finding of guilt during your NJP was just and within his discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2016 ed.).  The Board also determined that your contested counseling 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 found no evidence of a conflict of interest and you provided none.  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 request to remove your fitness report for the reporting period 1 April 2017 to 10 August 2017, 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 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,