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 

BJG 
Docket No:  2818-99 
1 June  1999 

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 

Encl: 

(1)  DD Form  149 dtd  19 Jan 99 wlattachments 
(2)  HQMC PERB memo dtd  22  Apr 99 
(3)  HQMC JAM2 memo dtd  29 Mar  99 
(4)  Subject's naval record 

1.  Pursuant to the provisions of  reference (a), Subject, hereinafter referred to as Petitioner, 
filed enclosure (1) with  this Board requesting, in  effect, that his naval record  be corrected by 
removing his nonjudicial punishment (NJP) of  9 January  1997, documentation of  which  is at 
his attachment 1 to his application.  He further requested  removing reference to the NJP from 
his fitness reports for 24 August  1996 to 31 July  1997 and  1 August  1997 to  15 April  1998. 
Copies of these reports are at Tabs A and  B.  The Board did  not consider the request to 
modify these reports,  since enclosure (2) indicates the Headquarters Marine Corps (HQMC) 
Performance Evaluation Review Board  (PERB) will deal with this if  the NJP is removed. 
Finally,  Petitioner requested removing his failure of  selection to staff sergeant.  The Board 
did  not consider this request either, since he has not exhausted his administrative remedies. 
He may  ask the HQMC .Promotion Branch (MMPR-2) for remedial consideration for 
promotion on the basis of any corrective action approved by  this Board or the PERB.  If  he is 
successful before the remedial promotion board,  HQMC will  strike his failure of  selection. 

2.  The Board, consisting of  Messrs. Lightle and  Morgan  and  Ms.  Moidel, reviewed 
Petitioner's allegations of  error and  injustice on 27 May  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  concerning 
his contested NJP,  as a result of  which he received a forfeiture of  $l,394.OO. 

b. 

In  correspondence attached as enclosure (3), the HQMC office having cognizance 

over the subject matter of  Petitioner's request to remove his NJP has commented to the effect 
that this request has merit and warrants favorable action. 

CONCLUSION: 

Upon  review and consideration of  all the evidence of  record, and especially in  light of the 
contents of  enclosure (3), the Board finds the existence of  an  injustice warranting the 
following corrective action. 

RECOMMENDATION: 

a.  That Petitioner's naval record be corrected by  removing his NJP of  9 January  1997. 

b. 

In  light of this Board's decision to remove the contested NJP,  that Petitioner's 

application, to be forwarded by  this Board, be returned to the HQMC PERB, as agreed to in 
enclosure (2), for action on  his request to correct his fitness report record. 

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 future. 

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 
Petitioner' s naval record. 

4.  Pursuant to Section 6(c) of  the revised Procedures of  the Board for Correction of Naval 
Records (32 Code of  Federal Regulations, Section 723.6(c)) 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 

JONATHAN S. RUSKIN 
Acting Recorder 

5.  Pursuant to the delegation of  authority set out in  Section 6(e) of  the revised Procedures of 
the Board  for Correction of  Naval Records (32 Code of  Federal Regulations, Section 
723.6(e)) and  having  assured compliance with  its provisions, it is hereby announced that the 
foregoing corrective action, taken  under the authority of  reference (a), has been  approved by 
the Board on behalf  of  the Secretary of  the Navy. 

. 

- 

8' 

I 

I-kB 

2 

~-~RIUCTION OF MILITARY RECORD 
NS OF TITLE 10, U.S. CODE, SECTION 1552 

LEASEDO 
F M I S  PAGE 

AUTHORITY:  Tile 10 US Code 1552. EO 9397. 

PRNACY ACT 

I 

/ 

PRINCIPAL PURPOSE:  To initiate an appllcdion f a  corredion d 
m i l i r e c o r d .  Thefum~usedbyBoardmembersforreviewd 
pertine information in mdring a determination d relief through 
correcbon d a m i l i  record. 
. APPLICANT DATA 
. BRANCH OF SERVICE (Xone)  I 

I ARMY 
Fvst MnWle In~balJ (Please w t J  

lNAw 

. TYPE OF DISCHARGE (Kby courf-mama/, state 

i.  ORGANIZATION AT TIME OF ALLEGED ERROR IN RECORD 
VLUUNE CORPS RESERVE SUPPORT COMMAND 
5303 ANDREWS ROAD, KANSAS CITY, MO 64 147-1 207 
'. COUNSEL (Kany) 
. 
I.  W E  (Last, First, Middle Initial) 

. 

I 

N/ A 

* 

for 
9 

( 

I  AIR FORCE 

I 
I C.  PRESENT PAY GRADE  1 d.  SERW@  ~ ( K a p p I ~ c a b l e )  
I 
I '.  ~E;r"H'E":ZEiFiALkYg 

I X I  MARINE CORPS ( 
1 e.  SSN  -, 
Ez  !zRCT I  canu ACTNF  nury 

-  - 

---- 

I 

I 

4.  DATE OF DISCHARGE OR RELEASE 

1 COAST GUARD 

A 

6.  1 DESIRE TO APPEAR BEFORE THE BOARD IN WASHINGTON, D.C. 

I 

(No expense to the Government) (X one) 

I  b.  ADDRESS (Street. Apartment Number, City. State and ZIP Code) 

YES 

NO 

1.  I REQUEST THE FOLLOWING CORRECTION OF ERROR OR INJUSTICE: 

I 

SEE ATTACHED PETITION 

? 7 @ ~  - G B O Y ~ ~  

).  I BELIEVE THE RECORD TO BE IN ERROR OR UNJUST IN THE FOLLOWING PARTICULARS: 

SEE ATTACHED PETITION 

10.  IN SUPPORT OF THIS APPLICATION I SUBMIT AS EVIDENCE THE FOLLOWING:  (K Veterans Administfation man&  are pertinent to your case. 

giwz Regional Omce location and Claim Number.) 

SEE ATTACHED PETITION 

11. ALLEGED ERROR OR INJUSTICE 
a.  DATE OF MSCOMRY 

I b.  IF MORE MAN THREE YEARS SINCE THE ALLEGED ERROR OR INJUSTlCE WAS MSCOMRED, STATE WHY THE BOAR 

24 MAR 97 

I 

12. APPLICANT MUST SIGN IN ITEM 16.  IF THE RECORD IN QUESTION IS THAT OF A DECEASED OR INCOMPETENT PERSON, LEGAL 

PROOF OF DEATH OR INCOMPETENCY MUST ACCOMPANY APPLICATION.  IF APPLICATION IS SIGNED BY OTHER THAN APPLICANT, 
INDICATE RELATIONSHIP OR STATUS BY MARKING APPROPRIATE BOX. 

SPOUSE 

WIDOW 

WIDOWER 

NEXT OF KIN 

LEGAL REPRESENTATNE ( OTHER  spec?^) 

13.1 MAKE THE FOREGOING STATEMENTS, AS PART OF MY CLAIM, WITH FULL KNOWLEDGE OF THE PENALTIES INVOLVED FOR 
WILLFULLY MAKING A FALSE STATEMENT OR CLAIM.  (U.S. Code,  Title 18, Sec. 287, 1001, pmvides that an individual shall be fined under this 
We or imphoned not more than 5 years, or both.) 

14a. COMPLETE CURRENT ADDRESS,  INCLUDING ZIP CODE (Applicant should W a r d  ratification d e l l  changes 

b.  T E L E W M  NUMBER (;bcJudc 

DOCUMENT NUMBER 
(Do not write in this space.) 

0 2 - 0 9 - 9   9  P C 2  : 5 8  

I N 

Cz 

INSTRUCTIONS 

(Aldatashwldbelypedafpri7W 

1. For detailed i n f m  see:  Air Face lnstrudion 362603; Army Regulatii 15185; Cosst Guard. Code d Federal Regulations; 

T i  33, Part 52; or Navy, Code d Fed- 

Regutations; T i i  32, Part 723. 

2. Submit only original d this form. 

3. Complete dl items.  If the question is not applicable, mark "None." 

4. If space is i n s u f f i i ,  use "Remarks" or attach a d d i  sheet. 

5. Various wkmns and service organizations furnish counsel without charge.  These organizatii prefer that arrangements for 

be made through local posts or chapters. 

6. List ell attachments and enclosures. 

7. ITEMS 6 AND 7.  Personal appear- 

d you and your witnesses or representation by counsel is nd required to ensure full and impartial 

consideratiar d applIcat'i. Appearances and representations are permitted, at no expense to the Government, when a hearing is 

8. ITEM 8.  State the speak correction d record desired. 

9.  ITEM 9.  In order to justify  corredion d a military e x r d ,  it k neoessary for you to shaw to the satisfadion of the Board, or 1 must 

cthecwise satisfadorily appear, that the alleged entry or anission in the record was in error or unjust.  Evidence may indude aff~davits or 
under oath, and a brief d arguments supporting a p p l i i .  All evidence not already included 
signed testimony d witnesses, 
in your record must be submitted by you.  The responsibility for securing new evidence rests with you. 

10. ITEM 11.  10 U.S.C. 1552b pravldes that no corredion may be made unless request is made within three years after the discovery d the 

emx or injustice. but that the Board may excuse failure to file within three years after discovery if it finds it to be in the interest d justice. 

I 
I 

MAIL COMPLETED APPLICATIONS TO APPROPRIATE ADDRESS BELOW 
COAST GUARD 

p~ 

(For Active Duty Personnel) 

ARMY 

Army Board for the Correction of Military Records 
1941 Jefferson Davis Highway, 2nd Floor 
Arlington, VA 222024508 

(For Other than Active Duty Personnel) 

Army Review Boards Agency 
Support Division, St. Louis 
AlTN:  SFMR-RBRSL 
9700 Page Avenue 
St. Louis, MO  63132-5200 

NAVY AND MARINE CORPS 

Board for Correction of Naval Records 
2 Navy Annex 
Washington, DC 20370-51 00 

Chairman 
Board for Correction of Military Records (C-60) 
Department of Transportation 
400 7th St.,  SW 
Washington, DC 20590 

AIR FORCE 

Board for Correction of Air Force Records 
SAFmAlB 
550-C Street West, Suite 40 
Randolph AFB,  TX 781 50-4742 

17. REMARKS (Applicant has exhausted all administrative channels in seeking this wmxfion and has been counseled by a representative of hisher servicing 

military personnel office.  (Applicable only to active duty and reserve personnel.)) 

I 

(Block 8) 

a.  I request that my official military records be corrected to 
reflect that I was not the subject of an Article 15 UCMJ hearing 
conducted on 970109. 

I _ _ _ _ _  

-. 

b.  I request that the Service Record Book page 12 entries dated 
970108 and 970109 be removed from my Service Record Book. 

c.  Request the return of pay and allowance in the amount of 
$1,394.00.bcb  : 

B1  ;lrp, u*rrr  C i t g t p   rot  ~ C O O I V -  w o w \  

d.  I request that portions of my CD fitness 
of WQ8H  to M changed in the following blocks: 
---9CCSBXq- 

950131 

---.--  r 9 g . t  for the period 

(1)  Block 17(b) be changed to read "adverse no". 

(2)  Block 17 (c) be changed to read " e ~ i p l i ~ n a r y  no". 

(3)  Block 24 reflect no signature. 

- - .. 

(4)  In the Reviewing Officers Certification block on page 2 

of the fitness report, stike-out all statements regarding the 
non-judicial punishment. 

* a h  

t o  U J P   ;X  ( i t t t P   Cot  970)01  - 49Gqt5 

T at my failure of selection to the grade of Staff Sergeant 

e. B v ; b ~  
before the CY-98 SNCO promotion board be removed from my records 
and my records corrected to reflect that I am in the primary 
promotion zone for Active Reserve  (AR) Staff Sergeant. 

(Block 9) 

I Believe the Record to be in Error or Unjust in the Following 
Particulars: 

I believe that my Nonjudicial punishment of 9January 1997 was 
unjust.  On 9 January 1997 I appeared before the ~ e p u t ~  
Marine Corps Reserve Support Command  (MCRSC), Kansas City, 
Missouri, in response to allegations that I violated Articles 117, 
Provoking Words and Gestures; 128, Simple Assault; and, 134, 
Indecent Language, Uniform Code of Military Justice.  Evidence of 
the alleged cri 
investigation co 
testimony of Ms.. 

and the in-person 
ed to have uttered 

commander, 

falsely at the 
of mv subordina 
suppbrt command relied heavily-upo- 
the NJP, specifically discounted my argument that she 

-- 

testimony at 

was 

testifying falsely at the request of her fiancee, corporal- 
At the conclusion of the NJP I was found guilty of violating 
c___--- -- 134 UCMJ, Indecent Language. 
Article 128 UCMJ, Assault, and Article 
My punishment included forfeitures of $697.00 pay per month for two 
months and reduction to Corporal, E-4.  The reduction was 
suspended.  I appealed the NJP on 15 January 1998.  The Command 
endorsement of 28 February 1997 clearly relies upon the testimony 
and credibility of 

I was recently informed that Ms. 
Corps Reserve Support Command 

- p P r o a c h e m  

(MCRSC) Staff Judge Advocate  (SJA) on 21 August 1998 indicating 
that she had provided false testimony at my NJP and seeking 

The SJA prepared a synopsis of her statement and had 
attest to its correctness.  During her interview with 

the SJA she stated that she had been pressured by corpora- 
to testify falsely and that his career depended on her false 
testimony.  I am further advised that too much time has passed to 
file another appeal of my NJP due to the discovery of new evidence. 

The retraction of her earlier testimony and the acknowledgment that 
she agreed to testify falsely at my NJP support my contention that 
the NJP is unjust and should be removed from my official military 
records.  Also enclosed in this appeal is a letter from the 
investigating officer attesting that he would not have recommended 
NJP in my case has -ubmitted 
a truthful statement.  Also 
contained in the enclosures is a statement from Major General 

Commanding General,  Marine Corps Reserve Support 
Command at the time of my NJP, to the President of the FY 1999 AR 
SNCO Promotion Board. 

The intent of Congress regarding the function of the BCNR, as well 
as the other service correction boards, is clearly presented in a 
letter dated 16 June 1949 by Congressman Mike Monroney, co-author 
of the Legislative Reorganization Act  (10 U.S.C.  1552) that created 
the service correction boards, to the Honorable Dan Kimball, Acting 
Secretary of the Navy: 

"In enacting the section dealing with the correction of 

military records, it was our idea that civilian boards properly 
staffed by professional assistants, carefully chosen for their 
experience, judgment and fairness, could carefully study each case. 
I do not believe the review should be limited to the bare fact of 
the military records but that these should be considered in light 
of collateral evidence which the claimant might present ... as to the 
extent of authority delegated for the purpose of the Act, I 
considered it to be the fullest correction of an error or the 
removal of an injustice.  Within reasonable limits I would consider 
that this authority would not limit in any way the rights of the 
board to determine what is an error or injustice." 

Additionally, the federal courts in a great number of cases have 
considered 10 U.S.C.  1552 and have provided guidance to the Service 

Secretaries and the various Service Correction Boards.  The 
following are a few excerpts: 

This section creating the boards for correction of military 

records is remedial legislation giving the boards authority to 
correct errors or injustices in the records of service personnel, 
and that this should be construed liberally rather than narrowly or 
technically.  Oleson v U.S.,  172 Ct. C1.  9  (1965). 

Naval Board of Correction of Military Records has jurisdiction 
to consider whether a former serviceman's military record should be 
corrected if it is considered such correction necessary to correct 
an error or remove an injustice. The Board has a nondiscretionary, 
judicially enforceable duty to exercise that power and to correct 
the records.. 
Correction Bo 
not to his detriment.  Doyle v U.S.,  599 F.  2d 984  (Ct. Cl., 1979). 

t records to benefit of petitioner 

652 F. 2d 181  (D.C. Cir., 1981). 

Once the BCNR has before it substantial evidence of error an/or 
injustice, the BCNR has significant leeway to fashion and determine 
an appropriate remedy that has the goal of restoring the member and 
his record to the position he or she would have enjoyed had the 
error an/or injustice not occurred.  The Attorney General of the 
United States has stated the BCNR may go so far as engage in a 
fiction to provide an appropriate remedy and thereby give effect to 
its intended purpose.  41 Op Att'y  Gen 71, 74  (1951) 

L 

Pursuant to Daraqraph 0114.j.(4) of JAGINST 5800.7C  (JAG Manual), 
it appears th 
statements of 
statement of 9  December 1996 and her testimony at my NJP hearinq 
were not truthful.  Based upon the foregoing information I believe 
that the NJP of 9 January 1997 and my failure of selection to Staff 
Sergeant should be removed from my official military records. 

E m s .  The 
arly indicate that her 

(Block 10) 

Exhibit 1: Copy of page 12. 
Exhibit 2: NJP Hearing Records 
Exhibit 3: Rebuttal of Non-Judicial  Punishment 
Exhibit 4: CD F 
t 970801 to 980415 
Exhibit 5: Majo 
lette 
Exhibit 6: Capt 
Exhibit 7: Letter 
Genera 
Exhibit 8: Letter from Lieutenant C 

tter of 16 January 1999 

October 1998 
f 22 October 1998 

EPARTMENT OF T H E  NAVY 

HEADQUARTERS  U N I T E D  STATES M A R I N E   C O R P S  

3280 R U S S E L L  ROAD 

QUANTICO,  V I R G I N I A   22 1 3 4 - 5  1 0 3  

, gf F L Y  REFER To: 
MMER/PERB 
APR  2  ;1  1999 
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Subj:  MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD  (PERB) 

ADVISOR 
SERGEAN 

THE CASE OF 

USMCR 

Ref: 

(a) Sergean 
(b) MCO P1610.7D w/Ch 1-4 

D Form 149 of 19 Jan 99 

Encl : 

(1) CMC Advisory Opinion 1070 JAM2 of 29 Mar 99 

1.  Per MCO 1610.11C, the Performance Evaluation Review Board, 
with three members present, met on 21 April 1999 to consider 
Sergeant 
the fitness reportsfor the periods970801 to 980415 (AR) were 
requested.  Reference  (b) is the performance evaluation directive 
governing submission of the repor 

tition contained in reference  (a).  Changes to 

9~ - 3 \ h \  q?  and 

1- 

3 

2.  The petitioner contends that the nonjudicial punishment  (NJP) 
recorded in the fitness report was unjust and provides his 
commentary into the situation.  Additionally, he furnishes 
documentation which he believes substantiates his case. 

3.  In its proceedings, the PERB concluded that the report$* 
both administratively correct and procedurally complete as 
written and filed.  The uncontroverted matter of fact is that the 
NJP occurred and was correctly recorded via the Performance 
Evaluation System.  Unless and until that action is set aside or 
otherwise eliminated from the petitioner's  record, the requested 
modifications to the fitness reportrare not warranted.  NOTE:  If 
BCNR should agree with the advisory opinion contained at the 
enclosure, and direct elimination of the NJP, the PERB will 
effect the necessary corrections to the petitioner's  fitness 
report 5 

6 1  

4.  The Board's  opinion, based on deliberation and secret ballot 
vote, is that at this time, the contested fitness reportsshould  a 
remain as configured. 

Sub j :  MARINE CORPS  PERFORMANCE EVALUATION  REVIEW  BOARD  (PERB) 

ADVISORY OPINION ON  BCNR APPLICATION  IN THE CASE O F  
SERGEANT 

USMCR 

5.  The case is forwarded for final action. 

Evaluation  Review Board 
Personnel Management  Division 
Manpower  and Reserve Affairs 
Department 
By direction of the Commandant 
of the Marine Corps 

DEPARTMENT OF THE NAVY 

HEADQUARTERS UNITED STATES MARINE CORPS 

2 NAVY ANNEX 

WASHINGTON, DC 20380-1775 

IN REPLY REFER TO 
1070 
JAM2 
2  9  MAR  1999 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Sub j :  BOARD FOR CORRECTION 0 
IN THE CASE OF SERGEAN 
U.S. MARINE CORPS RESERVE 

1.  We are asked to provide an opinion on Petitioner's request 
for removal from his official record of the nonjudicial 
punishment  (NJP) imposed by Commander, Marine Corps Reserve 
Support Command, on 9 January 1997. 

2.  We recommend that the requested relief be granted.  Our 
analysis follows. 

3.  Backqround 

a.  On 9 January 1997, Petitioner was found guilty of assault 
and communicating indecent language, in violation of Articles  128 
and 134, Uniform Code of Military Justice  (UCMJ).  He was awarded 
reduction to corporal and forfeiture of $679.00 pay per month  for 
2 months.  The reduction was suspended for 3 months. Petitioner's 
appeal claiming that the punishment was unjust was denied by 
Commander, Marine Forces Reserve, on 12 March 1997. 

b.  Petitioner asserted in his a 
of his assault and indecent language 
fabricated her story at the request 
of Petitioner's  who appeared as the government's  one other 
witness at the NJP.  In his forwarding endorsement to that 
appeal, the 
testimony o 
her testimony compelling. 

oted that he relied heavily on the 

finding her to be very credible and 

lleged victim 

had 
subordinate 

c.  On 21 August 1998, 

rovided a sworn 

statement to the Staff Judge Advocate, Marine Corps Reserve 
Support Command.  In that statement, she admitted that she had 
been untruthful at Petitioner's  NJP at the request of her then 
fiance.  She admitted that she had, in truth, taken Petitioner's 
comment as a joke and had not been offended. 

ENCL  ( 1 )  

. 

Subj:  BOARD FOR CORRECTION OF 
IN THE CASE OF SERGEANT 
U.S. MARINE CORPS RESERVE 

4.  Analysis 

a.  Petitioner should never have been found guilty of 

assault, as there was no evidence presented on the element of 
bodily harm.  The offense of assault as charged against 
Petitioner requires the infliction of bodily harm.  "Bodily harm" 
is defined as a harmful or offensive touchinq, however sliaht. 
1 injury.  Even 
"Harmful" in turn refers to infli 
as alleged, no 
assumlng that Petitioner did touc 
physical  injury was p 
er, Ms. 
stified at the NJP that she did not find the 

> 

touching, which purportedly consisted of Petitioner tugging at 
the lapels of her jacket, either threatening or aggressive. 
There was also no evidence presented that she found the touching 
offensive in any other way.  Accordingly,  there was insufficient 
evldence to suppor 
did bodily harm to 

eponderance that Petitioner 

b.  The offense of communicating indecent language requires 
ive or shocking under the circumstances. 
claimed at the NJP that she took 
riously and was offended, her recantation 

that lan 
A1 though 
Petition 
makes clear that, under the circumstances, she took the comment 
as a joke and was not offended 
confirms Petitioner's  asserti 
manufactured  at the behest o 
to improve his lot at work by getting Petitioner in trouble. 

y against him was 

fiance, who hoped 

her recantation 

c.  The fact tha 

did not find the comment 

offensive further supports the conclusion that the touching which 
accompanied the comment, in addition to not being injurious, was 
also not offensive. 

5.  Conclusion.  Accordingly, for the reasons 
recommend that the requested relief be granted. 

orth above, we 

t 

~ssls~anr-nead 
Military Law Branch 
Judge Advocate Division 

. 

ENCL  ( 1 )