Docket No: 8752-19
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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 17 November 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, as well as the 3 February 2020 advisory opinion (AO) furnished by the Headquarters Marine Corps, Military Personnel Law Branch (JPL) and your rebuttal.    
 
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. 
 
The Board carefully considered your request to remove your 20 June 2018 Administrative Remarks (page 11) counseling entry, your 21 June 2018 Report of Misconduct (ROM) and all related derogatory material.  The Board considered your contentions that the evidence demonstrates that the statement you provided was not false and did not violate Article 107 (False Official Statement), Uniform Code of Military Justice (UCMJ).  You also contend that the evidence does not support the finding that you intended to deceive, the page 11 entry does not specify which statement was false or intended to deceive, and the page 11 entry unfairly impugns another officer’s misconduct upon you.  Specifically, the entry’s reference that the other officer exposed himself by urinating in public.  You claim that you did not make any statement regarding whether or not the other officer’s actions were “inappropriate,” and that your statement “he never said or did anything offensive or sexually suggestive” is not false because there is no 
correlative, prior statement.  You argue that the offensive or sexually suggestive nature of the statements are a matter of subjective opinion.  You further assert that your statement is not a denial that the comments were made, it expresses an opinion regarding whether or not the other officer acted offensively or in a sexually suggestive manner.   
 
The Board, however, substantially concurred with the AO that your page 11 entry should remain in your record as filed.  In this regard, the Board noted that pursuant to paragraph 3005 of the Marine Corps Individual Records Administration Manual (IRAM), you were issued a page 11 entry, counseling you for providing an official statement used in another officer’s rebuttal, in which, you deny that he acted inappropriately.  Your statement was contrary to the evidence and contradicted your account made to the investigating officer during the initial preliminary inquiry.  The Board also noted that your contested page 11 entry was written and issued in accordance with the IRAM.  Specifically, the entry provided written notification concerning your misconduct and it afforded you the opportunity to submit a rebuttal.  Moreover, your Commanding General (CG) signed the entry and your CG determined that your misconduct was a matter essential to record, as it was within his discretionary authority to do.   
 
The Board noted your statement and rebuttal to the AO.  However, the Board substantially concurred with the AO that your statement was official and met the elements to support a violation of Article 107, UCMJ.  The Board determined that your statement was made while acting in the line of duty, affected an investigation and affects the official military personnel file of another officer.  The Board also determined that your statement was in fact contrary to statements that your wife was visibly and audibly offended by the other officer’s statement.  Moreover, the Board relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharge their official duties.  The Board thus concluded that there is no probable material error or injustice warranting corrective action to remove the page 11 or the ROM.   
 
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,