D E P A R T M E N T  O F  T H E  N A V Y  
BOARD FOR CORRECTION OF NAVAL RECORDS 

2 NAW ANNEX 

WASHINGTON DC  20370-5100 

ELP 
Docket No.2792-98 
8 March  1999 

From: 
To : 

Chairman, Board for Correction of Naval Records 
Secretary of the Navy 

Subj : 

REVIEW OF NAVAL RECORD OF 

4amm- 

Ref: 

(a) 10 U.S.C.  1552 

Encl : 

(1) Case Summary 
(2) Subject's  naval record 

1.  Pursuant to the provisions of reference  (a), Petitioner, a 
former enlisted member of the Marine Corps, applied to this Board 
requesting, in effect, that his naval record be corrected by 
removing the nonjudicial punishment  (NJP) awarded on 28 July 1995 
and the fitness report for the period 15 July to 9 December 1995. 

2. The Board, consisting of Ms. Gilbert, Ms. Taylor, and Mr. Tew, 
reviewed Petitioner's  allegations of error and injustice on 
10 February 1999 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. Although it appears that Petitionerf s application to the 

Board was not filed in a timely manner, it is in the interest of 
justice to waive the statute of limitations and review the 
application on its merits. 

c. After about four years of active service, Petitioner 

reenlisted in the Marine Corps on 20 November 1993 for four years 
as a SGT  (E-5).  At the time of the NJP at issue, Petitioner was 
assigned to the Marine Corps Recruit Depot, Parris Island, SC, as 
a drill sergeant. 

d. Petitioner served without incident until 28 July 1995 when 

he received NJP for violating a regulation by having a 9mm pistol 
with live ammunition in his possession, and creating a hazardous 
condition within the barracks by placing the pistol and a loaded 
magazine in the ceiling of the recruit casual barracks, in 
violation of Articles 92 and 134 of the Uniform code of Military 
Justice (UCMJ).  Punishment imposed was a letter of reprimand. 

e. Petitioner then appealed the NJP, stating that punishment 
was imposed on the basis of what could have happened and not on 
the pertinent facts.  He explained that on 9 July 1995, his wife 
admitted to him that she had an affair with a SGT D.  Petitioner 
then called SGT D, who confirmed this version of events.  SGT D f s  
wife was on phone when Petitioner called, and she threatened to 
kill his wife. During the conversation, Petitioner noted that he 
had a pistol belonging to SGT D in his car, and he likened SGT 
D's  adultery to his killing someone with that weapon and then 
placing the blame on SGT D. When Petitioner told his wife about 
the threat from Mrs. D, she informed the provost marshal's  office 
(PMO) .  The criminal investigation division (CID) then called and 
requested that he make a statement.  In response, he stated that 
he was concerned about his marriage and the fact that both the 
PMO and CID were now involved.  Since he did not want to have SGT 
D f s  pistol in his possession, he took the pistol and its magazine 
to the casual barracks and placed them in two different locations 
within the ceiling of the barracks.  Later, when making his 
statement to CID, he was asked if SGT D owned any weapons.  At 
that time, Petitioner told CID that he had placed SGT D f s  pistol 
in the ceiling of the casual barracks and requested that CID go 
with him to get the pistol.  He was told the pistol was fine 
where it was for now and it would be retrieved after SGT D had 
been interviewed.  Petitioner stated that early the next morning 
he was handcuffed, taken to the casual barracks, and the pistol 
was seized. 

f. Petitioner's  appeal was denied on 12 September 1995.  He 

received an adverse fitness report for the period 15 July to 
9 December 1995, which cited the foregoing NJP. 

g. Petitioner extended his enlistment for additional 11 months 

in July 1996 and on 1 August 1996 he was awarded the Navy-Marine 
Corps Achievement Medal for superior performance of duty while 
serving as a drill instructor.  His tour as a drill 
instructor/drill sergeant was completed on 12 August 1996. 

h.  On 5 February 1998, Petitioner1 s company commanding officer 
(CO) requested that the NJP be set aside.  He stated that although 
Petitioner did violate UCMJ Articles 92 and 134, certain extenuating 
circumstances led him to believe that Petitioner was treated unfairly. 
After reviewing the facts, the CO noted that Petitioner's  wife not 
only had an affair with SGT D, but also with three other Marines. 
Despite the extreme demands placed on him as a drill sergeant, he 
endured the additional personal anguish of an unfaithful wife and a 
disloyal friend, and performed with the highest degree of 
professionalism and leadership for which he received the Navy-Marine 
Corps Achievement Medal.  The CO further noted that the other three 
Marines involved were not punished for their adulterous relationships. 
On 13 May 1998, the NJP authority who imposed punishment on 28 July 
1995 responded that he did not have the authority to set aside the 
NJP, since it occurred almost three years ago.  He recommended that 
Petitioner seek legal assistance and noted that it was evident that 
Petitioner had overcome his setback in 1995. 

i. On 2 October 1996, the Performance Evaluation Review Board 

(PERB), Headquarters Marine Corps  (HQMC) concluded that the fitness 
report for the period 15 July to 9 December 1995 was both 
administratively correct and procedurally complete and should remain 
in the record, unless the NJP is removed.  This Board denied 
Petitionerrs request for removal of the contested fitness report on 
23 December 1996. 

j. Attached to enclosure (I), is an advisory opinion from the 

Head, Military Law Branch, HQMC, which states that absent clear 
evidence of an abuse of discretion, the NJP authority's findings 
should remain undisturbed and the punishment imposed was not 
disproportionately severe for the offenses committed.  The 
advisory opinion recommends that Petitioner's  request be denied. 

k. HQMC has advised the Board that Petitioner was promoted to SSGT 

(E-6) on 1 November 1998 and was reenlisted on 2 February 1999 for 
four years. 

CONCLUS ION : 

Upon review and consideration of all the evidence of record, the 
Board concludes that Petitioner's request warrants favorable 
action.  In this regard, the Board notes that that Petitioner 

clearly violated regulations by having the pistol in his 
possession, and created a hazardous condition by bringing it into 
the barracks.  However, the Board notes that even though 
Petitioner was not asked whether he had SGT D f s  pistol, or to 
reveal its location, Petitioner openly and truthfully told the 
authorities of his possession of that pistol and what he did with 
it.  Concerning the creation of a hazardous situation, the Board 
noted that although placing the pistol in the ceiling of the 
barracks was unwise, CID apparently did not believe the situation 
was sufficiently hazardous to warrant the immediate removal of 
the weapon.  The Board further notes that Petitioner did not lose 
his self-control during a very traumatic emotional situation or 
take any action against those who wronged him.  In fact, he 
placed the pistol in the ceiling of the barracks so that he would 
not do so. 

The Board particularly notes Petitioner has maintained an 
outstanding record prior to and subsequent to the NJP.  The Board 
believes that the extenuating circumstances in this case 
contributed to his lapse in judgment.  The Board further believes 
there are instances where an NJP has served its purpose and 
retention in the record does nothing but negatively reflect on 
the individualrs overall service.  At the time the incident 
occurred, he was serving in one of the Marine Corpsr most 
demanding jobs as a drill sergeant.  He successfully completed 
his tour despite severe personal problems, was awarded the Navy- 
Marine Corps Achievement Medal for his superior performance, and 
has been consistently rated as outstanding subsequent to the NJP. 

The Board also finds it extremely disturbing and unjust that the 
others who were involved in an adulterous relationship with 
Petitioner's wife received no punishment, but this NJP will 
continue to negatively reflect on a fine Mariners overall 
service.  Although the Board notes that Petitioner was promoted 
to SSGT, the NJP will most likely impact on future promotions 
opportunities because competition is significantly keener. 
Accordingly, despite the recommendation contained in the advisory 
opinion, the Board concludes that it would appropriate and just 
to remove all documentation pertaining to the NJP and the adverse 
fitness report for the period 15 July to 9 December 1995. 

RECOMMENDAT ION : 

a. That Petitioner's naval record be corrected by removing all 

references in both the service record book and the OMPF to the 
NJP of 28 July 1995, including, but not limited to,  the Offenses 
and Punishments (Page 12) entry of that date, the punitive letter 
of reprimand of 16 August 1995, and all documentation pertaining 
to Petitionerr s appeal of the NJP. 

b. That Petitioner's naval record be further corrected by 

removing the fitness report for the period 15 July to 9 December 
1995.  A memorandum should be inserted in its place which 
identifies the report; states that it has been properly 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 prohibits 
such authorities from speculating or drawing any inferences as to 
the nature of the report. 

c. 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 futures. 

d. 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 Peti tioner' 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. 

ROBERT D. ZSALMAN 
Recorder 

&6/d 

ALAN E. GOLDSMITH 
Acting Recorder 

5.  The foregoing action of t h e  Eoard is submitted for your 
review and action. 

Reviewed and approved:  MAY  2 1  899 

KAREN S. HEATH 

Principal Deputy Assistant Secretary of the Navy 

(Manpcwer and Reserve Affairs)