DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 .

 

JSR
Docket No. 04770-0939
9 July 2009

From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy

 
 
   
 

 
 

 

Subj ‘ sie ae Riera eee sis .
REVIEW OF NAVAL RECORD

Ref: fa) 10 U.S.C. 1552
Encl: DD Form 149 dtd 30 Dec 08 w/attachments
HOMC MMER/PERB memo dtd 2 Apr 09

HOMC MIO memo dtd 29 Apr 09

HOMC MMER e-mail dtd 8 May 09

HOMC MIO memo dtd 12 Jun 09

Subject'’s ltr dtd 25 Jun 09

Subject's naval record

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1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1} with
this Board requesting, in effect, that his naval record he
corrected by removing the fitness report for 1 June to 1
November 2007, a copy of which is at Tab A. As shown in
enclosure (2), the Headquarters Marine Corps (HOMC) Performance
Evaluation Review Board (PERB) has directed removing the
contested fitness report. Petitioner further requested removing
the service record page 11 (“Administrative Remarks (1070)”)
counseling entry dated 1 August 2007 and his rebuttal dated 21
October 2007. Copies of these documents, as they appear in his
Official Military Personnel File (OMPF), are at Tab B.

2. The Board, consisting of Ms. Wilcher and Messrs. Bowen and
McBride, reviewed Petitioner's allegations of error and
injustice on 9 July 2009, and pursuant to its regulations,
determined that the corrective action indicated below shouid 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 available under existing law and
regulations within the Department of the Navy.

b. The contested counseling entry addresses an alleged
alcohol related incident that was the subject of a preliminary
inguiry. Petitioner asserts the findings were false and that
they were tainted by influence from the ambassador and a Colonel
H---, who was angry with Petitioner for having contacted the
inspector general about alleged unethical conduct of another
officer who was ultimately relieved.

c. ‘The counseling entry at issue begins as follows:

070801. Region 2, MCESC [sic] [Marine Corps Embassy
Security Group], Counseled this date for the following
deficiencies: Violations of Article 133 and Article
134 UCMI [Uniform Code of Military Justice] relating to
an alcohol related incident in Muscat, Oman in June
2007:

d. In enclosure (3), the HQMC Manpower Information
Operations, Manpower Management Information Systems Division
(MIO) commented to the effect that the copy of the contested
counseling entry on file in Petitioner's Officer Qualification
Record {OQR) should be completely removed, as it was not signed
by the commanding officer (CO); and that the copy on file in his
OMPF, which is signed by the CO, should be retained, but
modified by deleting the following language: “Violations of
Article 133 and Article 134 UCMJ relating to an alcohol related
incident in Muscat, Oman in June 2007:" MIO justified this
recommendation by stating violations of the UCMJ should be
resolved by disciplinary action, rather than counseling, but
concluded the entry at issue, as it appears in Petitioner’s
OMPF, otherwise meets the elements of a proper page 11
counseling.

e. Enclosure (4) explains the PERB decision to direct
removing the contested fitness report.

£. Enclosure (5) shows that MIO, having reviewed enclosure
(4), adhered to its position reflected in enclosure (3).

g. Enclosure (6) is Petitioner’s reply to MIO, contending
that not removing the counseling entry would be inconsistent
with the action of the PERB, since “The entire incident was
unjust and a clear act of reprisal” and the entry was the source
document for the fitness report whose removal has been directed.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosure (3), the Board
finds the existence of an error warranting partial relief,
specifically, modification of the contested counseling entry to
remove reference to UCM] violations. However, the Board does

- not fully agree with the specific modification proposed by MIO,
nor does it agree the OQR copy should be completely removed.

The Board finds that “the following deficiencies:” should be
removed as weil, since it directly pertains to “Violations of
Article 133 and Article 134 UCMJ"”; and that “an alcohol related
incident in Muscat, Oman in June 2007:" should be retained, as
it does not refer to violations of the UCMJ, it identifies the
incident that was the basis for the entry, and it identifies the
time and place of that incident. Contrary to MIO; the Board
finds both the OMPF and OOR copies of the entry should be
modified as indicated above, and that the OQR copy should not be
completely removed. In this regard, the Board particularly
notes that: the OMPF copy is signed by the CO, so0 the absence of
his signature from the OQR copy is an immaterial administrative
error.

The Board is not persuaded that the findings of the preliminary
inguiry were false, or that they were influenced by either the
ambassador ong .

    

In view of the above, the Board directs the following limited
corrective action:

RECOMMENDATION:

a. That Petitioner's naval record be corrected by modifying
as follows the service record page 11 (“Administrative Remarks
-(1070)") entry dated 1 August 2007:

Remove “the following deficiencies: Violations of
Article 133 and Article 134 UCM relating to,” so the
entry, as amended, will begin as follows: “Region 2,
MCESC [sic], Counseled this date for an alcohol related
incident in Muscat, Oman in June 2007:”%
b. 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 or material be added to the record in the future.

c. 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.

d. That the remainder of Petitioner's request be denied.

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.

pore of, (Aree

ROBERT D. ZSALMAN JONATHAN S, RUSKIN
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section

6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6{e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.

XA et GO
Foe ww. DEAN PPEIFFER

Executive Director