2. the Board, consisting of Mr.

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20376-5100

TUR .
Docket No: 12146-09
15 December 2009

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

 

Subj: REVIEW NAVAL RECORD OF. eee

 

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) Petitioner's naval record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, filed enclosure (1) with
this Board requesting that his naval record be corrected by
removing the nonjudicial punishment (NJP) he received on 4 August
2008 and all references thereof, which includes the letter of
reprimand (LOR), unit punishment book (UPB) entries, and
administrative remarks (page 11) entries.

e, Ms Qe, and Mr.

q reviewed Petitioner's allegations of error and
injustice on 8 December 2009 and, pursuant to its regulations, a
determined that the partial 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. In addition, the Board considered the advisory
opinions furnished by the Marine Corps Military Law Branch, Judge
Advocate Division dated 21 October 2009 and the Manpower
Information Operations, Manpower Management Information Systems

Division dated 16 November 2009, copies of which are provided in
enclosure {1}.

    

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. Enclosure (1) was filed in a timely manner.

c. Petitioner enlisted in the Marine Corps on 22 July 1990
and began a period of active duty on 25 January 1991. Petitioner
served without incident until June 2008, when he became the
Petitioner of a preliminary inquiry regarding fraternization.
Following an investigation, he was charged with two
specifications of having an inappropriate relationship with a
junior female Marine.

d. On 4 August 2008 Petitioner received NUP for two
specifications of violation of a lawful order, namely,
fraternization and failure to obey orders or regulations. The
punishment imposed was an LOR. The LOR specified his
disobedience of a lawful order and regulation, which was contrary
to the standards of good order and discipline, in May and April
2008 and his dereliction in the performance of his duties and
responsibilities.

e. As a result of the foregoing, an administrative remarks
(page 11) entry dated 4 August 2008, was placed in Petitioner’s
record. This entry served as counselling for him due to his
having a junior female Marine in his living quarters on two
occasions. Although Petitioner acknowledged and signed this
entry, he provided a statement which clarified the events for
this counselling. His statement noted, in part, that on one
occasion the junior female Marine was in his living quarters, but
not at the same time he was there, and that on the second
occasion she was not in his living quarters, but merely in the

vicinity.

f. Another administrative remarks (page 11) entry dated 3
November 2008, was placed in Petitioner's record. This entry
noted counselling regarding Petitioner’s violations of the
Uniformed Code of Military Justice(UCMJ), specifically, failure
to obey an order or regulation on 25 May (to have no contact with
the junior female Marine) and on 20 October 2008 (providing —
transportation for this junior female Marine). He also provided
a statement clarifying the events surrounding this entry.

g. During the period from 3 to 20 November 2008 an
investigation was conducted regarding the possible misconduct of
Pétitioner and the junior female Marine. This investigation
included the issuance of a military protective order (MPO) that
directed him not to have any direct or indirect contact with her.
However, Petitioner did contact her because he was under the
assumption that the MPO had expired.
h. In October and November 2009, two advisory opinions were
received from the Marine Corps regarding Petitioner’s request to
remove the NIP, LOR, UPB entries, and administrative remarks
(page 11) entries. The advisory opinions recommended partial
relief. In this regard, the advisory opinions state that the 3
November 2008 administrative remarks {page 11} entry should be
removed from the record because this entry did not meet the
elements of proper counselling since violations of the UCMJ are
not deficiencies and should be resolved through punitive
Measures.

CONCLUSION :

Upon review and consideration of all the evidence or record, the
Board concludes that Petitioner's request warrants partial
favorable action. In this regard, the Board substantially
concurs with the comments contained in the advisory opinions and
concludes that since the 3 November 2008 administrative remarks
(page 11) entry was improper, it should be removed from the
record. However, the Board further concludes that since the NUP,
LOR, UPB entries, and 4 August 2008 administrative remarks (page
11) entry were properly documented in the record, all should

remain as a part of his record.

In view of the foregoing, the Board finds the existence of an
injustice warranting the following partial corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing
and/or totally obliterating the administrative remarks (page 11)
entry dated 3 November 2008.

b. That any and all materials 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 materials be added to the record in the future.

ec. 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 no further 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.
ROBERT D. ZSALMAN BRIAN J. GEORGE
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 Regulation, 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.

' W. DEAN
Executiv ikect