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 NAVY ANNEX 

WASHINGTON DC  20370-5100 

SMC 
Docket No:  0202 1-99 
12 August  1999 

This is in  reference to your application for correction of 
provisions of  title  10 of  the United  States Code, section 

naval  record pursuant to  the 

You  requested  removal of  all reference to  your  special court martial (SCM) of  4 April  1997, 

removal of  documents relating to your  relief  for cause from 1 ecruiting duty, and  restoration of 

your  841 1 (recruiter) Military Occupational Specialty (MOS).  Headquarters Marine Corps 
(HQMC) has removed  all documents directly concerning the SCM, and  they  will remove 
references to the SCM from the documents concerning your  relief  for cause. 

A three-member panel  of  the Board  for Correction of  Naval  Records,  sitting in executive 
session, considered your application on  12 August  1999.  Your allegations of  error and 
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  HQMC, dated 24 May  1999, and  the Marine 
Corps Recruiting Command, dated  12 July  1999, copies of  which  are attached.  They also 
considered your letter dated 26 July  1999 with  enclosures. 

After  careful and  conscientious consideration of  the entire r  ord, the Board  found  that the 

evidence submitted was  insufficient to establish the existence f of  probable material error or 

injustice warranting removal of  your  relief  for cause or restoration of  your  MOS.  In  this 
connection, the Board  substantially concurred with  the commznts contained in  the advisory 
opinions.  Accordingly, your application  for relief  beyond  that effected by  HQMC  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  t 
taken.  You  are entitled  to have the Board  reconsider its dec sion  upon  submission of new  and 

material evidence or other matter not  previously considered '$ y  the Board.  In  this regard, it is 

t favorable action cannot be 

I 

important  to keep in  mind that a presumption  of regularity aqtaches to all official  records. 
Consequently,  when  applying  for a correction of an official  aval record,  the burden  is on the 

applicant  to demonstrate the existence of probable  material e f ror or injustice. 

Sincerely, 

W. DEAN PFEIFFER 
Executive  Director 

Enclosures 

DEPARTMENT OF THE NAVY 

HEADQUARTERS  UNITED STATES MARINE CORPS 

2 N A W  ANNEX 

WASHINGTON, DC 20380-1775 

MEMORANDUM FOR THE EXECUTIVE DIRE(X"TR, BO  D FOR CORRECTION OF 

NAVAL RECORDS 

Sub j :  BOARD FOR CORR 
IN THE CASE OF 
USMC 

IN REPLY REFER TO: 
1070 
JAM 3 

N 

t 
i 

1 

1.  We are asked to provide an opinion re arding Petitioner's 
request to remove from his records inform tion related to his 
conviction by summary court-martial and r instatement of his 
military occupational specialty  (MOS) as  recruiter. 

2.  We recommend the requested relief be  ranted in part. 

3.  Backwound.  Petitioner served as a cdnvassing recruiter 
assigned to Marine Corps Recruiting Station, Louisville, 
Kentucky.  Petitioner was the subject of a preliminary inquiry 
which led to his summary court-martial conviction on 4 April 1997 
for inappropriate contact with a member of the Delayed Entry 
Program, in violation of Article 92, Uniform Code of Military 
Justice.  Petitioner was sentenced to forfeit $1000.00 pay.  The 
convening authority suspended all forfeitures in excess of 
$250.00 pay.  On appeal, the Judge Advocate General of the Navy 
set aside the finding of guilty and the sentence, and dismissed 
the charge because the convening authority had not created an 
adequate record of trial. 

a.  Petitioner seeks removal from his records of all 

reference to his conviction by summary court-martial.  This 
request should be granted.  We recommend any records from the 
court-martial, as well as any performancelevaluationl or 
personnel action that included reference to or relied on the 
summary court-martial conviction as a basts for the evaluation or 
action, be removed from Petitioner's official files. 

1  We would also observe that the summary court-martial conviction 
was discussed in Petitioner's performance evaluation for the 
period 970301 to 970424.  Because Petitioner appealed his 
conviction, discussing it in a performanc~ evaluation prior to a 
decision on appo. 11 w ; ~ s  inappropriate unde f  paraqrapl-.  4nn6.7b of 
MCO 1610.7D. 

Sub j :  BOARD FOR CORRECT1 
IN THE CASE OF SGT 
USMC 

b.  We note, however, that the Judge Ad ocate General's 

referencing the summary court-martial convi 1 t i o n   should be 

decision to "set-aside" the findings of gui t and sentence in 
Petitioner's case does not amount to either an acquittal or a 
finding of innocence.  Thus, although those records relying on or 

removed, records discussing the u n d e r l y i n g   a c t s   without 
reference to the court-martial need not be  emoved.  For 
instance, designation of an MOS is a decisi n the Commandant of 
the Marine Corps makes in the exercise of his discretion.  See 
paragraph 4d, MCO 1326.6C 
paragraph 3105.3at MCO 1000.6F, 
Assignment Classification, and Travel Systems Manual.  Although 
Petitioner's c o n v i c t i o n   has been set aside, the u n d e r l y i n g   f a c t s  
of Petitioner's inappropriate conduct remain, and it would be 
appropriate for a representative of the Commandant of the Marine 
Corps to review the underlying facts to ascertain if Petitioner's 
recruiting MOS should be voided. 

d 

c.  Similarly, relieving a subordinate $or cause is a 
decision left to the discretion of the commander.  Again, 
although Petitioner's conviction was set aside, the underlying 
facts may nevertheless support Petitioner's ]relief for cause. 
Once Petitioner's  record is cleansed of all references to his 
summary court-martial conviction, we conclude it would be 
appropriate for the Commandant of the Marine Corps to review the 
cleansed record to determine whether Petitioner should have been 
relieved based on his underlying conduct. 

5.  Conclusion.  Accordingly, we recommend relief be granted to 
the extent of ordering the removal from Petitioner's records of 
all references to his conviction at summary court-martial and all 
performance evaluations or personnel actions relying upon the 
conviction.  However, we recommend appropriate officials review 
the cleansed records to determine what personnel actions might be 
appropriate based on the underlying facts. 

I 

' 9-,-c 

".--- - - -   - -  

Acting Head 1 
Military Ju tice Branch 
Judge Advoc te Division 

: 

UNITED STATES  M A R I N E  CORPS 

MARINE CORPS  RECRUITING  COMMAND 

3280 RUSSELL ROAD 

QUANTICO, VA  22 134-5 103 

IN REPLY  REFER  TO 

1070 
A 
12 Jul 99 

I 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FO  CORRECTION OF NAVAL 

RECORDS 

Subj : 

ON  IN THE CASE OF SERGEANT 

Ref: 

(a) MMER ltr dtd 24 Mav  99 

MC 

1.  Returned.  In response to reference  (a) 1  and after a careful 
re'.!erence (b) ,  it is my 
etir:ion be denied. 

review of Sergean 
recommendation th 

2.  Although Sergean 
aside due to an 
fact that Sergea 
substantiated, causing his Commanding Officer to relieve him for 
cause. 

urt martial conviction was set 
d of trial, it doesn't erase the 

ctions were investigated and 

3.  Sergean 
the assignment of the 8411 MOS. 

Id not be now, nor in the future, allowed 

Chief of Staff 
Marine Corps Recruiting Command