DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAW ANNEX
WASHINGTON DC 20370-5100
ELP
Docket No. 7468-98
27 April 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 21 April 1999.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies
Your allegations of error and
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.
The Board found that you reenlisted in the Marine Corps on
28 November 1985 for six years as a SGT (E-5).
your reenlistment, you had completed more than five years of
prior active service.
At the time of
The record reflects that you served without incident until 19 May
1987 when you were convicted by general court-martial of
violating a general order by knowingly failing to seek medical
aid for recruits who were injured after being ordered to jump
You
from the ledge of a building onto a concrete slab below.
were sentenced to reduction in rank to CPL (E-4) and confinement
The general court-martial order
at hard labor for two months.
The convening
was authenticated by the staff judge advocate.
rr/~/" indicating the original was
authority's name is preceded by
signed by the convening authority.
you continued to serve without further
After to your conviction,
incident, were meritoriously advanced to SGT by the Commandant of
_-
and were awarded the Navy Achievement
the Marine Corps (CMC),
Medal for professional achievement while serving as a ground
support equipment manager and maintenance control supervisor
during the period 1-31 March 1990.
on 16 February 1992.
is not on file in your record.
The DD Form 214 for this period of service
You were honorably discharged
On 20 February 1992, you enlisted in the Marine Corps Reserve for
two years.
The date you went into in the Active Reserve Program
is not shown'in available records.
SSGT (E-6) on"1 January 1993 and reenlisted on 10 March 1995 for
four years.
been consistently rated as outstanding and you have been awarded
the Navy Commendation Medal and two Navy Achievement Medals.
Your performance of duty since February 1992 has
However, you were promoted to
The Judge Advocate General Manual,
1114(f), states that court-martial promulgating orders shall be
authenticated by the signature of the convening authority or
other competent authority acting on the case, or a person acting
under the direction of such authority.
prepared in compliance with the rule shall be presumed authentic.
Rules for Courts-Martial
A promulgating order
(RCM)
the Board carefully reviewed
In its review of your application,
your record for any mitigating factors which might warrant
removing the general court-martial from your record and restoring
you to your original date of rank of SGT.
justification for such relief could be found.
the Board noted your contention to the effect that the general
court-martial is nullified because the convening authority's
signature does not appear on the general court-martial order that
promulgated the findings and sentence, and the convening
authority's action.
that the staff judge advocate improperly approved the findings
and the sentence by direction.
You assert the court-martial order indicates
In this regard,
However, no
The Board is prohibited by law from reviewing the findings of a
court-martial and is restricted to reviewing the sentence to
determine if it should be reduced as a matter of clemency.
Accordingly, although the authentication of the contested
promulgating order appears to be proper and in accordance with
RCM 1114(f), your contention is evidentiary and cannot be
considered by the Board.
The Board particularly noted that after your conviction your
superior performance was recognized by a meritorious promotion to
SGT and award of the Navy Achievement Medal.
stellar performance in the Active Reserve has also been
recognized with the award of two more Navy Achievement Medals and
the Navy Commendation Medal.
The Board further noted your
Your continued
The Board noted that you were convicted of a
Unless the conviction is set aside by appellate
involvement with the White House in the Marine Corps
Tots Program" was recognized in a Reader's Digest article.
While your achievements since your conviction are commendable,
they do not erase the lapse of judgment for which you were
convicted.
authority, the Board has no authority to remove the conviction
from your record.
serious breach of responsibility, however, you received a
relatively
light sentence to confinement and reduction in rank.
The Board believed that the sentence was fair, and far less than
It appeared to the Board that because
you could have received.
of your otherwise outstanding performance of duty you received
extraordinary consideration when you were allowed to complete
your enlistment without further administrative action.
was not persuaded that your subsequent achievements warrant
changing the sentence by setting aside the reduction and
The Board
restoring you to your original date of rank of SGT.
thus concluded that the sentence was appropriate and no clemency
is warranted.
The names and votes of the members of the panel will be furnished
upon request.
Accordingly, your application has been denied.
"Toys for
The Board
It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
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
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