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 A N N U  

WASHINGTON DC  20370-5100 

TJR 
Docket No:  4848-98 
19 May 1999 

Dear 

This is in reference to your 
naval record pursuant to the 
States Code, Section 1552. 

application for correction of your 
provisions of Title 10, United 

A three-member panel of the Board for Correction of Naval 
Records, sitting in executive session, considered your 
application on 18 May  1999.  Your allegations of error a n d .  
injustice were reviewed in accordance with administrative 
regulations and procedures applicable to the proceedings of this 
Board.  Documentary material considered by the Board consisted of 
your application, together with all material submitted in support 
thereof, your naval record and applicable statutes, regulations 
and policies.  In addition, the Board considered the advisory 
opinions furnished by Headquarters, Marine Corps, copies of which 
are attached. 

After careful and conscientious consideration of the entire 
record, the Board found that the evidence submitted was 
insufficient to establish the existence of probable material 
error or injustice.  In this regard, the Board substantially 
concurred with the comments contained in the advisory opinions. 

Accordingly, your application has been denied.  The names and 
votes of the members of the panel will be furnished upon request. 

It is regretted that the circumstances of your case are such that 
favorable action cannot be taken.  You are entitled to have the 
Board reconsider its decision upon submission of new and material 
evidence or other matter not previously considered by the Board. 
In this regard, it is important to keep in mind that a 
presumption of regularity attaches to all official records. 

Consequently, when applying for a correction of an official naval 
record, the burden is on the applicant to demonstrate the 
existence of probable material error or injustice. 

Sincerely, 

W.  DEAN PFEIFFER 
Executive Director 

Enclosures 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 NAVY ANNEX 

WASHINGTON,  DC 20380-1775 

IN REPLY REFER TO: 

1400/3 
MMPR- 2 
3 Sep 98 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Sub j : 

Ref:  (a) JAM2 MEMO 1070 of 26 AUG 98 to BCNR 

(b) MCO P1400.32 A 

,  a retired Marine, has requested the 
53 special court-martial (SCM) conviction 

and to be promoted to the rank bf  sergeant major.  He believes the 
conviction was unfair and that he would have been promoted to 
sergeant major had he not received the SCM.  According to reference 

for removal of the SCM was denied.  Since- 
records have not changed no further action can be 

taken.  Recommend Gunnery Sergeant-request 

be denied. 

isted Promotions 

Promotion Branch 
By direction of 
the Commandant of the Marine Corps 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 N A W  ANNEX 

WASHINGTON, DC 20380-1775 

IN REPLY REFER TO- 

1070 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

1.  We are asked to provide an opinion regarding Petitioner's 
claim that his 27 August 1953 special court-martial conviction 
was unfair.  Petitioner claims that but for this conviction, he 
would have been promoted to sergeant major. 

2.  From the available records, we conclude that Petitioner's 
special court-martial was not unfair and should not be removed 
from his record.  We defer as to whether Petitioner should have 
been promoted to sergeant major.  Our analysis follows. 

3.  Backaround 

a.  Petitioner served on active duty from 1941 to 1945 and 

from 1949 to 1967, when he retired as a gunnery sergeant. 
Petitioner saw combat in Tinian and Saipan.  Petitioner received 
the Silver Star and Purple Heart for combat action in Korea. 

b.  On 2 August 1953 in Korea, Petitioner's  company commander 

ordered him to put his squad to work.  Petitioner refused the 
order and was placed under apprehension.  He was subsequently 
charged before a special court-martial with willfully disobeying 
a superior commissioned officer in violation of Article 90, 
Uniform Code of Military Justice  (UCMJ).  On 27 August 1953, 
contrary to his pleas, Petitioner was convicted and sentenced to 
be reduced to private first class and to forfeit $75.00 pay per 
month for six months.  The convening authority, Commanding 
Officer, 2d Battalion, 1st Marine Regiment, approved the sentence 
on 8 September 1953.  On 21 September 1953, the supervisory 
authority, Commanding General, 1st Marine Division, approved only 
so much of the sentence as extended to reduction to private first 
class and forfeiture of $75.00 pay per month for three months. 

4.  Analysis 

a.  Under 10 U.S.C.  1552(b), no correction may be made to a 
servicemember's  record unless he files a request for correction 
within 3 years of discovering the error or injustice. 

h b j :  

LICATION 

Petitioner does not adequately explain why he waited 45 years to 
file this request for correction.  It should be denied as 
untimely. 

b.  As to the merits, Petitioner claims that his special 

court-martial was unfair.  He asserts that it was his 
understanding that his squad would have the day off.  Petitioner 
does not contest the fact that the company gunnery sergeant 
ordered his squad to work, and that Petitioner refused to obey 
the order.  Nor does Petitioner dispute that he refused to obey 
the company commander's  direct order to put his squad to work. 
Petitioner asserts that both the company gunnery sergeant and the 
company commander harbored bias and animosity toward him which 
resulted in the 'get  to work" order being issued.  He claims this 
bias and animosity ultimately led to Petitioner's  referral to a 
special court-martial. 

c.  Petitioner's  arguments have no legal merit.  Whatever 
their motivation, Petitioner's  company commander and company 
gunnery sergeant issued a lawful order which Petitioner disobeyed 
at his peril.  Petitioner's  disobedience is aggravated by the 
fact that it took place in a combat zone and appears to have 
occurred in front of other Marines.  Those facts, coupled with 
Petitioner's  prior disciplinary record  (described below), make 
appropriate a referral of the matter to a special court-martial. 

d.  It is also important to note that Petitioner's  battalion 

commander, not his company commander or company gunnery sergeant, 
referred his charge to a special court-martial and approved the 
sentence.  Petitioner's  division commander also reviewed the case 
and reduced the sentence.  Petitioner has not alleged that these 
officers harbored bias or animosity towards him and we find no 
such evidence in the available records.  Nor does Petitioner 
claim that these officers abused their discretion in referring 
the matter to a special court-martial or in approving the 
sentence.  Indeed, we find no abuse of discretion by either the 
battalion or division commander. 

e.  According to the Defense Finance and Accounting Service, 

a private first class with over eight years of service was paid 
$117.00 per month in 1953.  Petitioner's  approved forfeiture of 
$75.00 pay per month for three months was within the lawful 
limits of two-thirds pay per month for six months.  We conclude, 
therefore, that Petitioner's  sentence was lawful.  We would also 
note that Petitioner's  sentence was far below the jurisdictional 

IN THE CASE OF 0 - U.S.  MARINE CORPS (RET.) 

j:  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR) APPLICATION 

limits of the special court-martial; Petitioner could have been 
sentenced to as much as six months confinement, reduction to 
private, forfeitures of two-thirds pay per month for six months, 
and a bad conduct discharge. 

f.  We defer as to whether Petitioner would have been 

promoted to sergeant major but for this special court-martial 
conviction.  We would observe, however, that Petitioner was the 
subject of other disciplinary proceedings.  On 1 July 1943 and 
again on 29 January 1944, Petitioner was the subject of 
punishment by order of his commanding officer for being absent 
from duty without leave.'  On 28 December 1950, Petitioner was 
found guilty before a deck court of being absent from duty 
without leave.2  Petitioner's  absence resulted in his missing the 
sailing of the ship to which he was attached. On 18 June 1951, 
Petitioner pleaded guilty before a summary court-martial to being 
disorderly in uniform in a public place, to disobeying a lawful 
order from a superior petty officer, and to use of disrespectful 
language toward a superior petty officer. 

5.  Conclusion.  We conclude that Petitioner's  special 
court-martial did not result in an error or injustice and should 
not be removed from his record.  Accordingly, we recommend relief 
be denied. 

U.S. Marine Corps 
Head, Military Law Branch 
Judge Advocate Division 
By direction of the 
Commandant of the Marine Corps 

1  This punishment was authorized under Articles 25 and 26, 
Articles for the Government of the Navy.  See paragraphs 101 and 
102, Naval Courts and-Boards (1923) . 
2  Deck courts were convened under Article 64, Articles for the 
Government of the Navy, to adjudicate minor charges against 
enlisted personnel and could impose no more than twenty days 
confinement or forfeiture of pay.  See  paragraph 141, Naval 
Courts and Boards  (1923) .