DEPARTMENT GF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S$, COURTHOUSE ROAD, SUITE 1004

ARLINGTON, VA 22204-2490

 

JSR
Docket No: NRS172-13
21 August 2014

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

Subj:
REVIEW OF NAVAL RECORD

Ref: (a} Title 10 U.S.C. 1552

Enel: (1) DD Form 149 dtd 17 Jul 23 w/attachments
(2) HOMC MMRP-13/PERB memo dtd 4 Dec 13
(3) Subject’s ltr dtd 16 Dec i3
(4) HOMC MMRP-13/PERB memo dtd 18 Jun 14
(5) Subject’s itr dtd 21 Jul 14 w/attachments
(6) 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 23 October to 21 November 2012 (copy at Tab
A).

2. The Board, consisting of Messrs. Hicks, Spooner and Swarens,
reviewed Petitioner's allegations of error and injustice on 21
August 2014. Pursuant to the Board’s regulations, the Board

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 foilows:

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.
c. The contested fitness report is an adverse “not
observed” report documenting Petitioner’s disenrollment from the
Staff Noncommissioned Officer Academy. Section I (reporting
senior (RS)'’s “Directed and Additional Comments”) says the
following:

MRO [Marine reported on] and another student [then
Corporal, now Sergeant S---] drank alcoholic

beverages at his home for approximately five hours.
After drinking, MRO allowed his peer to drive from
the safety of his home on base. These action [sic]
resulted with that Marine receiving a ticket for
driving under the influence of alcohol [DUI]. MRO’s
lack of judgment put many lives in danger. MRO’s
actions were not becoming of a noncommissioned
officer nor in keeping with good order and discipline.

Section J.2 shows “Provided to MRO, no response.” The reviewing
officer (RO)’s comments, in section K.4, effectively mirrored
those of the RS. The RO also stated “Due to administrative
oversight and system error, this report is being submitted
late.” The RS submitted the report on 28 January 2013, just
over two months after the reporting period, and the third
sighting officer, who concurred with the “adverse nature” of the
report, signed it on 12 February 2013. Marine Corps Order
P1610.7F, Appendix A, provides that fitness reports should
arrive at Headquarters Marine Corps (HOMC) no later than 30 days
after the reporting period. Section K.6 shows the RO comments
were not referred to Petitioner for an opportunity to make a
statement.

d. Petitioner asserts he advised Sergeant S--- that if he
drank, he would need to get a designated driver. He further
asserts that to avoid a physical conflict with Sergeant S---, he
allowed him to drive himself while intoxicated. Petitioner
provided a supporting statement from Sergeant S---, affirming
that since he had reason to believe his girlfriend, whom he
thought was pregnant with his child, was receiving threats from
her ex-boyfriend who still had a key to her house, Petitioner
could not have stopped him from driving himself without a
“physical altercation.” Sergeant S---‘s statement further
reflects that “[Petitioner’s] actions were that of a concerned
Marine and were within [sic] good intent” and that “My actions
were caused solely on my own and [Petitioner] only attempted to
prevent me from driving.”

e. Enclosure (2) is the first of two reports from the HOMC
Performance Evaluation Review Board (PERB) in Petitioner’s case.
This first report commented to the effect that Petitioner’s

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request should be disapproved, as he “could have taken several
other courses of action...to include notifying someone in the
leadership chain of command.” The PERB further noted that
Petitioner had an opportunity to make a statement, but chose not
to do so.

f. In enclosure (3), Petitioner's reply to the first PERB
report, he stated that after he had made “multiple attempts at

preventing Sergeant S--- from driving,” Sergeant S--- toid
Petitioner his girlfriend was en route and would drive him.
Petitioner said that when Sergeant S--- gestured to an
approaching car, “stating that was his ‘ride’,” he did not
question him. Petitioner further stated that “In no way did I
simply ‘allow him to drive himself away’,” as the PERB

characterized the incident, and that he “took the same steps
that any reasonable individual would deem appropriate” to
prevent Sergeant S--- from driving. In addition, Petitioner
contended he had been denied the opportunity to rebut the
contested fitness report.

g. Enclosure (4) is the second PERB report, which also
commented to the effect that Petitioner's request should be
denied. This second report stated that Petitioner had provided
nothing new to show he took all reasonable steps to keep
Sergeant S--- from leaving his house in an intoxicated
condition. The PERB acknowledged that Petitioner “cannot be
held accountable for a Marine getting behind the steering wheel
of a car and driving drunk,” but concluded that he “can be heid
accountable for creating an enabling environment of drinking to
excess and exercising poor judgment in the entire affair.” The
PERB also noted that the RO stated, in section K.4, that
Petitioner "refused to acknowledge the adversity of this
report.” Finally, the PERB stated “Late submission of fitness
reports is not desirable” but “it is not, in and of itself, an
invalidating factor.”

h. Enclosure (5) is Petitioner's repiy to the second PERB
report, contending that “In both decisions, the PERB had made
incorrect statements pertaining to the evidence given along with
false conclusions.” He provided a statement from his then
current staff noncommissioned officer in charge (SNCOIC) stating
‘it is evident that [Sergeant S---] lied to, manipulated, and
deceived [Petitioner] and other guests in order to defeat
several measures put in place by his peers to prevent this [his
DUI] from happening." The SNCOIC also supported Petitioner's
assertion that he had not been afforded a chance to rebut the
RS’s comments, and he objected to the failure to refer the RO’s
comments to Petitioner as well as the contested report’s late
submission.
CONCLUSION:

Upon review and consideration of all the evidence of record,

notwithstanding enclosures (2) and (4), and especially in light
of Sergeant S---'s statement, Petitioner’s. letters at enclosures
(3) and (5), and the statement from. the SNCOIC, the Board finds

an injustice warranting the requested relict, The Boayd. is
persuaded that Petitioner did make reasonable efforts to prevent
Sergeant S--- from driving while intoxicated, that he did not

exercise poor judgment, and that he has effectively been
punished for the misconduct of another Marine. 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 Rept Reporting Senior From To

23 Oct 12 21 Nov 12

 

28 Jan 13

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 anda
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 HOMC be corrected
accordingly.

d. That any material or entries inconsistent with or
relating to the majority'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.

e. 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 ina
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

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complete record of the Board’s proceedings 11 the above ellal lee
matter
1. op 1 BB
Hoth fo Oban
ROBERT Db. ZSALMAN JONATHAN 5. KUSKLN
Recorder Acting Recoraer

5. The foregoing report of the Board is submitted for your
review and action.

 

Reviewed and approved: { b /e ve /

 

ROBERT L. WOODE

Assistam General Counsel
(Manpower anc Raserve Affairs)
O00 Navy Pentagon, Am 4054"
Washington, DC 20250-1006