DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVM. RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 8652-19 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 (RET.) Ref: (a) Title IO U.S.C. § 1552 (b)Title IOU.S.C. § 1371 Encl: (1) DD Form 149 w/enclosures (2) IO ltr 5800 of 22 Nov 13 (3) ltr 1920 tern of 14 Jul 14 (4) CG, ltr 1920 C 06 of 28 Aug 14 (5) Petitioner's ltr 1920 Dso/abk of 14 Nov 14 (6) FIRST ENDORSEME NT 1920 SJA 8 Dec14 (7) CG, SECOND ENDORSEMENT 1920 C 06 of 8 Jan 15 (8) CMC THIRD ENDOR SEMENT 1920 JPL (undated) 1. Pursuant to the provisions of reference (a), Subjec t, hereinaf ter referred to as Petitioner, filed enclosure (I) with the Board for Correction of Naval Records (Board), requesting that his naval record be correc ted by changing his retirement paygrade to chief warrant officer 5 (CW0 5). 2. A three-member panel of the Board, sitting in executive session, reviewed Petitioner's allegations of error and injustice on 1O November 2020 and, pursuant to its regulations, determined that the evidence submitted was insufficient to establish the existence of probable material error or injustice . 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. From approximately 2012 to 2013 Petitioner, a married Marine, allegedly maintained an inappropriate sexual relationship with a married woman who was not his wife. A 22 November 2013 command investigation (Cl), enclosure (2), did not substantiate adultery, but didsubstantiate misconduct for having an inappropriate relationship. On 14 July 2014, the Commander, Marine Corps Installations Command (COMMCICOM) documented Petitioner's misconduct in a Report of Misconduct (ROM), enclosure (3), and recommended that Petitioner be required to show cause for retention at a Board of Inquiry (BOD. c. On 21 July 2014, Petitioner submitted a statement in response to the ROM in which he neither addressed nor denied his inappropriate relationship. On 28 August 2014, the Commanding General (CG), directed that Petitioner be required to show cause for retention at a BOI, enclosure (4). d. On 14 November 2014 Petitioner submitted a request for retirement in lieu of further administrative processing for administrative separation for cause, enclosure (5), admitting that he committed misconduct and that his performance of duty was substandard. Petitioner also acknowledged that he could be retired in a lesser grade and that the retirement grade will be the highest grade in which he served satisfactorily, as determined by the Secretary of the Navy. The and the CG, favorably endorsed Petitioner' s request to retire and recommended that Petitioner be retired in the grade of CW0 5, enclosures (6) and (7). e. The Commandant of the Marine Corps (CMC) recommended that Petitioner's retirement request be approved, but that he be retired in the lesser grade of CW0 4 due to the fact that "the Cl indicatedthat the misconduct began either before or shortly after [Petitioner's] promotion to [CW0 5]" enclosure (8). f. On 2 May 2016, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN (M&RA)) approved Petitioner's request to be retired in lieu of further administrative processing, and directed that he be retired in the lesser grade of CW0 4. Petitioner was honorably retired in the grade of CW0 4 on 31 July 2016. g. Petitioner contends that enclosure (8), the recommendation from the CMC to retire him in the lesser paygrade of CW04, is inequitable because Petitioner was informed by his counsel that he could not be reduced in rank when he submitted his package to resign his commission. h. At the time Petitioner submitted his request for retirement, Section 1371 of Title 10, U.S. Code, reference (b), did not permit retirement of warrant officers in a lesser grade. However, the statue was amended by the Fiscal Year (FY) 2016 National Defense Authorization Act to allow for the retirement of warrant officers in a lesser grade. Specifically, "unless entitled to a higher retired grade under some other provision of law, a warrant officer shall be retired in the highest regular or reserve warrant officer grade in which the warrant officer served satisfactorily, as determined by the Secretary concerned." As stated in enclosure (8), the CMC determined that because Petitioner already acknowledged that he may be retired in a lesser grade, no revision to his request was required to allow retire ment in a lesser grade. CONCLUSION Upon review and consideration of all the evidence of record, the Board determined that relief is not warranted. In this regard, the Board noted that a CI found that Petitioner began the underlying inappropriate relationship either before or shortJy after being promoted to CW0 5. Consequently, ASN (M&RA) determined that the last grade that Petitioner served satisfactorily was in the grade of CW04. Additionally, the Board noted that Petitioner acknowledged in his 14 November 2014 request to retire in lieu of further processing for administrative separation for cause that the he may be retired in a lesser grade, and that the retirement grade will be the highest grade in which he served satisfactorily. Accordingly, the Board determined that retirement at a lesser paygrade of CW04 shall be upheld. RECOMMENDATION In view of the above, the Board recommends no relief be granted. 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. 01/18/2021 Executive Director PRINCIPAL DEPUTY. ASSISTANT SECRETARY OF THE NAVY (M&RA) DECISION: (Performing the Duties of the Assistant Secretary of the Navy (M&RA)) Reviewed and Approved Board Recommendation (Deny Relief) 2/10/2021 10 Feb 2021