DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 8309-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF XXX XX USMC Ref: (a) Title 10 U.S.C. § 1552 (b) MCO 1610.7 Encl: (1) DD Form 149 w/enclosures (2) Unit Punishment Book of 2 Mar 16 (3) Fitness Report of 1 Jan 16 to 2 Mar 16 (4) LtCol ltr 1400 EJA of 15 Mar 18 (5) HQMC memo 1610 MMRP-13/PERB of 29 Aug 19 (6) Modified Fitness Report of 1 Jan 16 to 2 Mar 16 (7) Petitioner’s rebuttal of 19 Sep 19 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 fitness report for the reporting period 1 January 2016 to 2 March 2016. 2. The Board reviewed Petitioner’s allegations of error and injustice on 30 October 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, 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 2 March 2016, Petitioner received nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 80 (conspiracy) and Article 121 (larceny). The Unit Punishment Book (UPB), enclosure (2), is filed in Petitioner’s official military personnel file (OMPF). c. Petitioner was issued enclosure (3), an adverse fitness report documenting his 2 March 2016 NJP. Section I included the Directed Comment: “This report is adverse in nature due to the MRO (Marine Reported On) being found guilty of Articles 80 (conspiracy) and 121 (larceny) of U.S. Government property exceeding $500 . . .” and the Directed Comment: “MRO was awarded non-judicial punishment for violating Article 80 and 121 of the Uniform Code of Military Justice.” d. On 15 March 2018, the imposing officer “set aside” the Article 121, UCMJ portion of Petitioner’s 2 March 2016 conviction, enclosure (4). The original UPB remains in Petitioner’s OMPF, with reference to his violation of Article 121, UCMJ redacted. e. On 8 August 2019, the Headquarters Marine Corps Performance Evaluation Review Board (PERB) directed that Petitioner’s contested fitness report be retained as filed with the following modifications: In Section I, (Directed and Additional Comments), remove the remarks “and 121 (larceny)” and ‘‘and 121.’’ On 29 August 2019, Petitioner’s fitness report was modified as directed by the PERB. Enclosures (5) and (6), respectively. f. In Petitioner’s rebuttal at enclosure (7), he opposes the PERB’s decision to modify the contested report in lieu of removal. Petitioner contends that the fitness report is in violation of reference (b), and still implies that he committed larceny; specifically, the remark “of U.S. Government property exceeding $500.” Petitioner further contends that, had the charge of larceny not been in his fitness report, his rebuttal to his reporting senior’s and his reviewing officer’s comments would have been substantively different. He also asserts that there are administrative errors that add confusion to the report. Specifically, the report states that he was found guilty of “Article 80 (conspiracy)” however Article 80, UCMJ is “attempts” and Article 81, UCMJ “conspiracy.” Petitioner argues that with such potentially career hindering charges, care should have been taken to clearly identify the correct charges. He also argues that the comments reference Item “Sa” and “Sb” but should be Item “5.a” and “5.b”, “MRQ” should be “MRO” and the forfeited amount should reflect “$1704.00” instead of “$170400.” MAJORITY CONCLUSION Upon review and consideration of all the evidence of record, the majority finds the existence of an injustice warranting partial relief. In this regard, the majority noted that the original UPB remains in Petitioner’s OMPF, with reference to his violation of Article 121, UCMJ redacted. The majority determined that the UPB reference to violation of UCMJ Article 80, instead of Article 81, was likely a scrivener’s error. The majority, however, determined this scrivener’s error was not material as it made no difference to the adversity of the fitness report, and that the report’s Section I comment regarding Petitioner being found guilty of Article 80 (conspiracy) coincides with the charge on Petitioner’s UPB. The majority thus determined that the adverse report was warranted based on his violation of the UCMJ for conspiracy. The majority, however determined that the Section I remark “of U.S. Government property exceeding $500” is in direct relation to the set-aside conviction of Article 121, UCMJ, and concluded that it is in error and unjust for it to remain in the fitness report. The majority also agreed with the Petitioner that the typographical errors may be confusing to the reader of the report. The Board thus concluded that the Section I remark “of U.S. Government property exceeding $500” shall be redacted, and that the other administrative errors shall be corrected. MAJORITY RECOMMENDATION In view of the above, the majority directs the following corrective action: Petitioner’s modified fitness report at enclosure (6) be corrected by redacting the remark “of U.S. Government property exceeding $500” from the Section I (Directed and Additional Comments). Petitioner’s modified fitness report at enclosure (6) be corrected by changing the typographical errors as follows: “Sa” to”5.a.”; “Sb” to “5.b.”; “MRQ” to “MRO”; and “$170400” to “$1,704.00.” That no further relief be granted. MINORITY CONCLUSION Upon review and consideration of all the evidence of record, the minority member substantially concurred with the PERB action, and determined that no further corrective action is warranted. In this regard, the minority member determined that the UPB reference to violation of UCMJ Article 80, instead of Article 81, was likely a scrivener’s error. The minority member determined that this scrivener’s error, as well as other typographical errors are not material as they made no difference to the adversity of the fitness report. Moreover, the fitness report Section I comment regarding Petitioner being found guilty of Article 80 (conspiracy) coincides with the charge on Petitioner’s UPB, which remains in his OMPF. The minority member thus concluded that Petitioner’s fitness report, as modified by the PERB, shall remain in his OMPF. MINORITY RECOMMENDATION That no relief be granted. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) 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. 11/23/2020 Executive Director