DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
HD
Docket No. NR1i1866-14
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From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
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NAVAL RECORD”
Sub]: ‘Qiienecone
REVIEW OF
Ref: (a) 10 U.S.C. 1552
Enel: DD Form 149 dtd 1 Oct 13 w/attachment
HOMC MMRP-13/PERB memo dtd 15 Apr 14
Undtd notes reflecting basis for PERB action
-HOMC MIQ memo dtd 6 Jan 15
Subiect'’s ltr atd 14 Feb 15
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 the applicable naval record be
corrected by removing the fitness report for 1 January to 4 March
2011 (copy at Tab &) and the gexrvice record page 11 (“Administrative
Remarks (1070}") counseling entry dated 3 Marcn 2011 with his undated
rebuttal (copies at Tab B). As indicated in enclosure (2), the
Headquarters Marine Corps (HOMC) Performance Evaluation Review Board
(PERB) has directed removing the contested fitness report.
2. The Board, consisting of Mses. Davis, Trucco and Wilcher,
reviewed Petitioner's allegations of error and injustice on
12 March 2015, 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 available under existing law and regulations
within the Department of the Navy.
“b. Enclosure (1) was filed ina timely manner.
c. The page 11 entry at issue counsels Petitioner for “Violation
of the UCMJ [Uniform Code of Military Justice] Article 92 by involving
yourself in an inappropriate relationship with the spouse of another
service member.”
d. Enclosure (3) shows that the PERB basis for removing the
contested fitness report included a finding that the page 11 entry
in question, which was cited in the fitness report, “was not
substantiated.”
e. In the advisory opinion at enclosure (4), the HOMC office
with cognizance over page 11 entries has commented to the effect that
the contested entry should stand, stating “[Petitioner] has not
provided substantial evidence to support his claim that the page 11
entry was in error or unjust.”
£. In enclosure (5}, Petitioner’s response to the advisory
opinion, he noted that he received the page 11 entry the day before
his transfer flight from his duty station in England. He objected
that he was given less than 24 hours to reply to the entry, which
allowed him no chance to consult with an attorney or a senior enlisted
advisor. He maintained that there was no inappropriate relationship
between himself and the other service member’s spouse. Finally, he
contended that had there been any proof or evidence of a violation
of the UCMJ by an inappropriate relationship, his transfer should
have been delayed, and he should have been the subject of nonjudicial
punishment or court-martial proceedings.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (4), the Board finds an injustice
warranting removal of the page 11 entry. In this regard, the Board
concurs with the finding of the PERB that the entry was, as Petitioner
contends, unsubstantiated. In view of the above, the Board
recommends the following corrective action: ,
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing the
service record page 11 (‘Administrative Remarks (1070)") entry dated
3 March 2011 and Petitioner's undated rebuttal, which begins “I
received a Page 11 entry the day prior to flying out of the UK.” 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 them.
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.
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.
JONATHAN §. RUSKIN
Recorder
5. The foregoing report of the Board is submitted for your review
and action.
a
ROBERT J. O'NEILL
Reviewed and approved: -
3/10 Ms
LH Ube
RCBERT L. WOODS
Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 40548
Washington, DC 20350-1000
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