DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX /
WASHINGTON DC 20370-5100 . JSR
Docket No: 590-09
16 April 20093
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
VIEW OF NAVAL RECORD
Ref: (a) Title 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 18 Jun 08 w/attachments
{2} HOMC MMER/PERB memo dtd 21 Jan 09
3) HOMC MIO memo dtd 12 Feb 09
(4) Subject’s naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by removing the
fitness report for 11 May to 3 August 2007 and the service
record page 11 (“Administrative Remarks (1070)") counseling
2. The Board, consisting of Ms. LeBlanc and Messrs. Bourgeois
and Sproul, reviewed Petitioner’s allegations of error and
injustice on 16 April 2009, 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, 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,
finds as follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies which were available under existing law
and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
cc. The contested fitness report, from the Officer
Candidates School, reflects that Petitioner was relieved of his
duties as a platoon sergeant because a preliminary inguiry (PI)
concluded that he had conducted himself inappropriately with a
female officer candidate. The contested page 11 counseling
entry (cited in the fitness report and elsewhere as a “6105
entry” because of its reference to paragraph 6105 of the Marine
Corps Separation and Retirement Manual) was based on the results
of the PI. The redacted copy of the PI report at Petitioner's
enclosure. (7) to his application concludes “It is my belief that
[Petitioner] inappropriately singled --- out from the rest of 1%
Platoon, and as a result created an environment in which ---
perceived him as a threat.” Petitioner provides e-mail from his
platoon commander/reporting senior, at enclosure (9) to his
application, stating “there was no reason to enter a 6105 entry
without further investigation.”
d. Enclosure (2), the report of the Headquarters Marine
Corps (HQMC} Performance Evaluation Review Board (PERB) in
Petitioner's case, concluded.that his request to remove the
contested fitness should be denied. The PERB stated, in
paragraph 3.d, that the PI disclosed “n6 conclusive evidence
proving that the petitioner acted inappropriately” but the
investigating officer “conducted a thorough investigation and
made the determination that [Petitioner] did indeed act
inappropriately and that the candidate’s claims had merit.”
e. In enclosure (3), the HQOMC Manpower Information
Operations, Manpower Management Information Systems Division
commented to the effect that the contested page 11 entry should
stand as well. | .
CONCLUSION:
Upon review and consideration of all the evidence of record,
notwithstanding enclosures (2) and (3), and especially in Light
of the e-mail from the platoon commander/reporting senior, the
Board finds an injustice warranting full relief. The Board
considers that the serious and possibly career-ending actions at
issue should not have been taken without further investigation
beyond the PI, particularly when, as acknowledged by the PERB,
the PI had found no conclusive evidence that Petitioner had
acted inappropriately. In view of the above, the Board
recommends the following corrective action:
RECOMMENDATION:
a, That Petitioner's naval record be corrected by removing
the following fitness report and related material:
. . Period of Report
Date of Report Reporting Senior From To
16 Aug 07 iia _usMc 11 May 07 3 Aug 07
‘b. That there be inserted in his naval record a memorandum
in place of the removed report, containing appropriate
identifying data concerning the report; that such memorandum
state that the report has been removed by order of the Secretary
of the Navy in accordance with the provisions of federal law and
may not be made available to selection boards and other
reviewing authorities; and that such boards may not conjecture
or draw any inference as to the nature of the report.
c. That the magnetic tape maintained by HQMC be corrected
accordingly.
d. That Petitioner’s record be corrected further by
removing the service record page 11 (“Administrative Remarks
(1070)"} entry dated 10 August 2007 and his rebuttal dated 16
August 2007. This is to be accomplished by physically removing
the page 11 on which the entry appears and the rebuttal, or
completely obliterating the entry and rebuttal so they cannot be
read, rather than merely lining through the entry and rebuttal.
e. That any material or entries inconsistent with or
relating to the Board’s recommendation be corrected, removed or
‘completely expunged from Petitioner’s record and that no such
entries be added to the record in the. future.
f. That any material directed to be removed from
Petitioner’s naval record be returned to the Board, together
with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner’s naval record.
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.
. Psi42tete ov . fir bom
ROBERT D. ZSALMAN , JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
Reviewed and approved:
Qed. Gar
- WAH 84
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