D E P A R T M E N T O F  THE  N A V Y  

B O A R D   F O R   C O R R E C T I O N   O F   N A V A L   R E C O R D S  

2  N A V Y   A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

BJG 
Docket  No:  61 38-01 
18 April  2002 

SSGT -_MC - 

Dear  Staff Sergeant 0 

This is in  reference  to your application dated  23 July  2001  for correction of  your  naval 
record  pursuant to  the provisions of title  10 of  the  United  States Code,  section  1552. 

You  requested  reconsideration as to  your  service record  page  11 counseling entry dated 
21  April  1998.  Your  previous request  to  remove this entry, docket number  1225-99, was 
denied on  12 August  1999.  You  also  made new  requests to remove your page  1 1  counseling 
entry dated  16 April  1999 and  your  special court-martial of  28 and  29 July  1998. 

It  is noted  that  the Commandant of  the  Marine Corps has directed removal of  the court- 
martial. 

A three-member panel  of  the  Board  for Correction  of  Naval  Records,  sitting in  executive 
session,  reconsidered your case on  18 April 2002.  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 
current application,  together with all  material submitted in  support thereof,  the Board's  file 
on  your prior  case (including the advisory opinion furnished by  Headquarters Marine Corps 
(HQMC) dated  15 April  1999, a copy of  which  is attached),  your naval record  and applicable 
statutes,  regulations and policies.  In  addition,  the Board  considered the advisory opinions 
from  HQMC dated  12 February  and  8 March  2002 with  enclosure,  copies of  which  are 
attached. 

After careful and  conscientious consideration of  the entire record,  the Board  found that the 
evidence submitted was  insufficient to establish the existence of  probable material error or 
injustice.  In  this connection,  the  Board  substantially concurred  with  the comments contained 
in  the advisory opinions in  your  current case in  concluding that  the contested page  11 entries 
should stand.  Accordingly,  the  Board  again voted  to deny relief.  The names and  votes of 
the  members of  the panel  will  be  furnished upon  request. 

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 
and  material evidence or other matter not  previously 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, 

W.  DEAN  PFEIFFER 
Executive Director 

Enclosures 

DEPARTMENT OF T H E  NAVY 

HEADQUARTERS  U N I T E D  STATES  MARINE  CORPS 

3 2 8 0 R U S S E L L R O A D  

QUANTICO, VIRGINIA 22 1 3 4 - 5  103 

IN R E P L Y  R E F E R  TO: 

1070 
MIF 
15 APR 9$ 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj :  BCNR APPLICATION IN THE CASE OF S

S

1.  We reviewed SS~- 
documents concerning the request for removal of counseling entry 
noted on page 11, Administrative Remarks. 

application and supporting 

2.  MCO P1070.12, Marine Corps Individual Records Administrative 
Manual  (IRAM) authorizes commanders to make service record book 
(SRB) entries on page 11 for those entries considered essential 
to document an event in a Marine's  career for which no other 
means or methods of recording exists. 

3.  The page 11 counseling entry dated 21 W
requested for removal meets the standard for counseling in that 
it list specific deficiencies, recommendations for corrective 
action, and where assistance could be found. 

 1998, being 

& p ' l  

h

4.  In view of the above it is recommended that the request for 
removal of page 11 counseling entry be denied. 

5.  As to the question of the page 11 entry being prejudicial 
based on the member's  acquittal we recommend that the office of 
the Staff Judge Advocate of the Marine Corps provide advisory 
opinion and recommendat. i on. 

Manpower Information System 

~ e ~ d ,  
Field Support Branch 
Manpower Management Information 
System Division 
By direction 
Commandant of the Marine Corps 

DEPAHTMEMT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 N A W  ANNEX 

WASHINGTON,  DC 20380-1775 

IN REPLY REFER TO 
1070 
JAM2/7 
FFF  : : 2062 

MEMORANDUM  FOR EXECUTIVE DIRECTOR, BOARD  FOR CORRECTION OF 

NAVAL RECORDS 

Sub]: 

BOARD  FOR CORRECTION OF NAVAL RECORDS  (BCNR) APPLICATION 
IN THE CASE OF STAFF SERGEANT- 

d ! ! - S M C  

1.  -- Issue.  We are asked to provide an opinion on  Petitioner's 
request that BCNR  remove a Page  11 counseling entry and a 
"report of results of special court-martial"  be  removed from his 
record.  Petitioner had previously  requested that BCNR  remove 
the Page 11.  That request was denied. 

2.  Short Answer.  We stand by our previous recommendation of 
24 May  1999 that the requested relief as to the Page 11 be 
denied.  However, we recommend that the request to remove the 
report of special court-martial be granted.  Our analysis 
follows. 

2 .   Background.  On  17 December 1997, Petitioner apparer.tly paid 
an after hours visit to the spouse of a subordinate  for the 
purpose of conducting  a unit  recall.  That visit  resulted in a 
Page 11 counseling entry on 21 April  1998 for poor judgment and 
inappropriate behavior.  Petitioner submitted a rebuttal 
statement to this counseling entry.  The incident also 
apparently led to trial by  special court-martial on 28 and 29 
July 1998, which  resulted in the Petitioner's  acquittal. 

4.  Analysis 

a.  Petitioner seeks removal of the Page 11 entry because he 

was  later acquitted of criminal charges arising out of the 
incident.  That would be a sufficient basis to remove such a 
record if the record referred to criminal charges or 
disciplinary action.  However, neither the counseling entry, nor 
Petitioner's  rebuttal, mentions criminal charges, court-martial, 
or other disciplinary proceedings.  Rather, the counseling entry 
appropriately records a fact of importance regarding 
Petitioner's  military career -  -  that he was counseled on that 
day for the reasons specified.  Considering  also that Petitioner 
included a detailed description of his version of events 
regarding the incident in his rebuttal statement, we find no 

Subj:  BOARD  FOR CORRECTION  OF NAVAL RECORDS 

.?rrar or  injustice warranting  removal of this Page 11 counseling 
sntry. 

b.  As  for the report of special court-martial, the request 

ro remove it from his official records should be granted per 
Paragraph 4008.2 (a) (7) of MCO  P1070.12K.  Petitioner was 
acquitted of all charges. 

5.  Conclusion.  Accordingly, we recommend relief be denied as 
T O   the request to remove the p.11 entry and granted as to the 
request  to remove the report of results of trial by  special 
court-martial. 

'- ead, Military Law Branch 

Judge Advocate  Division 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES  MARINE CORPS 

3 2 8 0  RUSSELL  ROAD 

QUANTICO.  VIRGINIA  2 2 1 3 4 - 5 1 0 3  

IN REPLY REFER TO: 
1070 
MI FD 
8  Mi;'  2C2? 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj : 

OF STAFF SERGEANT- 

SMC 

Ref:  (a) MEMORANDUM FOR Executive Director, Board for 

Correction of Naval Records letter 1070 MIF dated 
15 Apr 99 

Encl:  (1) Head, Field Support Branch MEMORANDUM dated 6 Mar 2002 

1.  We were asked to review Staff Sergeant 
application for the second time concerning 
st for 
removal from his service records the ~dministrative Remarks 
(1070) NAVMC 118(11) page 11 entries dated 980421, 990416 and 
"report of the Special Court-Martial". 

2.  MCO P1070.12J1 Marine Corps Individual Records Administration 
Manual  (IRAM), paragraph 4010, authorizes commanders to make 
entries on page 11 which are considered matters forming an 
essential and permanent part of a Marine's military history, 
which are not recorded elsewhere in the Service Record Book 
(SRB), medical records, or the Marine's  automated record. 
Paragraph 1000.6 provides guidance,and information on 
documentation that is appropriate for inclusion in a Marine's 
official military personnel files (OMPF). 

3.  MCO 1610.12, the U.S. Marine Corps Counseling Program states 
that : 

a.  "Counseling is that part of leadership which ensures, 
by mutual understanding, that the efforts of leaders and their 
Marines are continuously directed toward increased unit readiness 
and effective individual performance. 

b .   Increase individual performance and productivity through 

counseling and thereby increases unit readiness and effectiveness. 

c.  Counseling enhances the leader's ability to improve the 

junior's performance." 

Subj:  BCNR APPLICATION IN THE CASE OF STAFF SERGEANT- 

\ 

SMC 

4.  JAGINST 5800.7, Manual of the Judge Advocate General  (JAGMAN) 
provides guidance and instructions concerning the issuance and 
distribution of courts-martial promulgating orders. 

5.  One of the many leadership tools that a commander has at 
their disposal is counseling and rehabilitation for their 
Marines.  Marine Corps policy is that reasonable efforts at 
rehabilitation should be made prior to initiation of separation 
proceedings and that the commander is authorized to document 
those efforts by a page 11 counseling entry per the IRAM.  The 
Marine Corps Separation Manual, paragraph 6105, sets forth 
policy pertaining to counseling and rehabilitation.  In cases 
involving unsatisfactory performance, pattern of misconduct, or 
other bases requiring counseling under paragraph 6105, separation 
processing may not be initiated until the Marine is counseled 
concerning deficiencies, and afforded a reasonable opportunity to 
overcome those deficiencies as reflected in appropriate 
counseling and personnel records. 

6.  The following comments/opinions concerning the page 11 entries 
dated 980421 and 990416 are provided: 

a.  The counseling entries do meet the elements of a 

proper page 11 counseling in that they list deficiencies, 
recommendations for corrective action, available assistance, and 
states that Staff sergeant-s 
make a rebuttal statement.  Additionally, the entries afford him 
an opportunity to annotate whether or not he chose to make such a 
statement and if made, a copy of the statement would be filed in 
the Service Record Book  (SRB) . 

provided the opportunity to 

b.  Staff sergean-knowledged 

the counseling 

entries by his signature and indicated his desire to make a 
statement in rebuttal. 

c.  Staff Sergeant 

claim that the page 11 entries are 
"prejudicial that disciplinary action follow these proceedings" is 
irrelevant.  The event, counseling, did in fact take place and that 
the contents of these entries do not reference disciplinary actions 
taken by his commander or information concerning an acquittal from 
a court-martial proceeding. 

d.  Staff Sergeant -does 

not provide a rebuttal statement 

to the page 11 entry dated 990416 to contest, explain, and refute 
the contents of the page 11 entry. 

e.  Staff serges-oes not provide documented evidence 

to support his request to remove the page 11 entries from his 
service records. 

7.  The following comments/opinions concerning the "report of the 
Special Court-Martial" are provided: 

a.  Staff Sergeant 

. 

- 

.laim why he believes that his 

records are in error or unjust is supported by the JAGMAN, Head, 
Military Law Branch, Judge Advocate Division letter 1070  JAM^/^ 
dated Feb 12, 2002, and the IRAM. 

b.  The enclosure is forwarded, informing the Board that 

partial relief of Staff Sergeant 
administratively granted by this- 

requested action was 

c.  Upon receipt, this office will forward to the Board the 

documents requested in the enclosure. 

8.  In view of the above, our recommendations are as follows: 

a.  Paragraph 4 of the reference remains unchanged in that 

the Board for Correction of Naval Records disapprove Staff 
Sergeant -quest 
Remarks  (1070) NAVMC 118(11) page 11 entries dated 980421 and 
990416 from his service records. 

for removal of the Administrative 

- 

b.  If the Board for Correction of Naval Records find that Staff 

Sergeant 
approve 
Remarks  (1070) NAVMC 118(11) page 11 entries dated 980421 and 
990416 from his service records. 

for removal of the ~dministrative 

ecords are in error or injustice was committed, 

F - L ~ s L ; ~ ~  

5 of the reference is hereby recinded. 

Point of contact 

at 

- "Ir"Ir. 

Head, Manpower Information 
Systems Field Support Branch 
Manpower Management Information 
Systems Division 

1070 
MIFD 

MEMORANDUM 

From:  Head, Manpower Information Systems Field Support Branch, 
Manpower Management Information Systems Support Division 
Head, Records Correspondence Section, Personnel Management 
Support Branch 

To : 

Subj:  CORRECTION OF THE OFFICIAL 

PERTAINING TO STAFF SERGEAN 
USMC 

Ref: 

(a) MCO P1070.12 
(b) JAGINST 5800.12 

Encl:  (1) Copy of Special Court-Martial Order Number 4-98 
(2) Copy of Head, Military Law Branch Judge Advocate 

Division ltr 1070 JAM2/7 dated Feb 12, 2002 

. 
1.  The Board for Correction of Naval Records  (BCNR) has requested 
that this Division review the subject named Marine's official 
military personnel files  (OMPF) regarding his alleged claim of error 
and injustice to his records.  Staff Sergea -has 
requested 
that the erroneous information, enclosure  (1)  e removed from his 
service records which can be granted administratively by this 
Division as authorized by reference  (a).  Staff Sergea 
claim is supported by reference  ( b )  which prohibits 
included in the service records when the proceedings resulted in an 
acquittal of all charges.  Additionally, enclosure  (2), also has 
concluded that the document is erroneously filed in Staff Sergeant 

- 

~

P

F

.

 

2.  Based upon this review, it has been determined that the 
following errors require corrective action.  Request that the 

contained in enclosure  (1) be expunged from Staff Sergeant 

MPF and forwarded to this Branch for disposition. 

3.  Please advise th 

*or 

by EMAIL at 

ext .321rc 
completed.