DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

Y

2 NAVY ANNEX

WASHINGTON, 

DC. 20370-5100

BJG
Docket No: 
29 April 1999

8332-98

SSG

Dear Staff Serg

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10, United States Code, section 1552.

Since you are still on active duty and have not been assigned a reenlistment code, your
request to change it was not considered.

R,ecords, sitting in executive

A three-member panel of the Board for Correction of Naval 
session, considered your application on 28 April 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
opinion from the Headquarters Marine Corps 
Division 
Review Board 
record dated 25 March 1999, copies of which are attached. They also considered the
evidence considered at your nonjudicial punishment (NJP) proceedings, and your counsel’s
undated rebuttal letter.

(JAM4), dated 28 October 1998, the report of the HQMC Performance Evaluation
(PERB) in your case, dated 30 November 1998, and a memorandum for the

(HQMC) Military Law Branch, Judge Advocate

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 substantially concurred with the comments contained in the advisory opinion dated
28 October 1998 in finding that your contested NJP should stand. They noted that you did
sign an advisement of rights form, so they did not consider it clear that your right against
self-incrimination was violated. They observed that the military judge in your court-martial
did not expressly find such a violation, rather, he granted the motion to suppress the use of
your statement as evidence at your court-martial.

In any event, they concluded that the

witness statement considered in your case would have provided compelling evidence of your
guilt, even if your own statement had not been considered.

The Board substantially concurred with the report of the PERB dated 30 November 1998 in
finding that your contested adverse fitness report should not be removed.

Since the Board found insufficient basis to remove your contested NJP or adverse fitness
report, they had no grounds to restore your drill instructor MOS (military occupational
specialty).

In view of the above, 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.

1070
it"$CT  

19%

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVA

FF 
SERGEAN
. S. MARINE

APPLICATION

Ref:

(a) Part V,

edition)

Manual for Courts-Martial, United States (1995

We are asked to provide an opinion regarding Petitioner's

1.
request that his nonjudicial punishment (NJP) of
and the accompanying fitness report covering
12 September 1997,
the period from   8 May 1997 to   12 September 1997, be removed from
his official records.

2.

We recommend that relief be denied.

Our analysis follows.

Petitioner's battalion commander imposed NJP in the form of

3 .
forfeitures of $973.00 pay per month for 2 months (forfeitures of
$723.00 pay per month for 2 months was
6 months) and a punitive letter of censure for adultery and
fraternization.
appeal.

Petitioner pled guilty at the NJP and did not

suspended for a period of

After the NJP,

the Commanding General, Marine Corps Recruit

Parris  Island, referred charges of adultery,

These charges arose from the same conduct
At the court-martial,

4.
Depot,
fraternization, and dereliction of duty against Petitioner to a
special court-martial.
that was the subject of the previous NJP.
the prosecution sought to use incriminating statements made by
Petitioner during the NJP as evidence of his guilt. In
accordance with the Military Rules of Evidence, the military
judge prohibited the prosecution from using these statements to
prove Petitioner's guilt because,
statements,
pursuant to Article   31, Uniform Code of Military Justice (UCMJ).
Petitioner now argues that the NJP should be set aside based upon
the military judge's ruling.

he had not been properly advised of his rights

at the time Petitioner made the

Under the reference,

5.
when he believes the preponderance of the evidence establishes
the accused committed the offenses charged.
evidence of an abuse of discretion,
should remain undisturbed.

The military judge's finding that

the NJP authority may impose punishment

the NJP authority's findings

Absent clear

ENCL 

(1)

Subj:

BOARD FOR CORRECTION OF NAVA

TAFF 
"'"U'. S 

SERGEAN
. MARINE

PLICATION

Petitioner's Article 31, UCMJ,
NJP hearing prohibited Petitioner's admissions of guilt from
being used against him at his court-martial.
of Evidence do not, however, apply at NJP.
Petitioner's argument is without merit.

rights were violated during the

Therefore,

The Military Rules

The military judge also noted that the battalion commander

6.
failed to follow the NJP guide as he was so advised by his
battalion legal chief.
we find no abuse of discretion in the battalion commander's
decision to impose NJP.
was well within legal limits,
events that led to his punishment.

The punishment imposed upon Petitioner
and Petitioner does not deny the

In reviewing Petitioner's case, however,

Accordingly, we recommend that Petitioner's request for

7 .
relief be denied.

Judge Advocate Division

aw Branch

2

ENCL 

(1)

)EPARThlENT  OF THE NAVY
 UNITED STATES MARINE CORPS

HEAbrcJARTERS

3280 RUSSELL ROA

D
 VIRGINIA 22134-5103

QUANTICO,

TO:

IN REPLY REFER 

1610
MMER/PERB
30 Nov 98

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

MARINE CORPS  
ADVISORY OPINION ON
SERGEANT

Subj:

Ref:

(a) 
(b) 

SSgt.
MC0 

P1610.7D

DD Form 149 of 4 Aug 98
w/Ch l-3

PERFCRMANCE  EVALUATION REVIEW BOARD (PERB)

BCNR APPLICATION IN THE CASE OF STAFF

USMC

Encl:

(1) CMC Advisory Opinion 1070 JAM4 of 28

Ott 98

Per 

MC0 

1610.11B, the Performance Evaluation Review Board,

1.
with three members present,
Staff 
Removal of the fitness report for the period 970508 to 970912
(CD) was requested.
directive governing submission of the report.

,petition contained in reference (a).

Reference (b) is the performance evaluation

met on 24 November 1998 to consider

Sergean

The petitioner believes that since he was acquitted of all

2.
charges at a Special Court-Martial,
(NJP) at which he was found guilty of the same offenses should be
eliminated from his record.
report which references that NJP warrants removal.

Likewise, he contends the fitness

the nonjudicial punishment

In its proceedings,

the PERB concluded that the report is

3.
both administratively correct and procedurally complete as
written and filed.
the fitness report is that the NJP occurred and was rightfully
recorded via the Performance Evaluation System.
the NJP is expunged or set aside,
is not mandated.

The uncontroverted matter of fact relative to

removal of the fitness report

Unless and until

The Board's opinion,

4.
vote, is that the contested fitness report should remain a part
of Staff Sergeant
is furnished to a
removal of the NJP.

official military record.
resolving the petitioner's request for

based on deliberation and secret ballot

The enclosure

Subj:

MARINE CORPS PERFORMANCE
ADVISOR
SERGEAN

EVALUATION REVIEW BOARD (PERB)

THE CASE OF STAFF

SMC

5.

The case is forwarded for final action.

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

MEMORANDUM FOR THE RECORD

BOARD FOR CORRECTION OF NAVAL RECORDS
PERFORMANCE SECTION
2 NAVY ANNEX, SUITE 2432
WASHINGTON, DC 20370-5100
TELEPHONE: D
FAX:
EMA I

.NAVY .MIL

 

(BCNR)

DATE: 

25MAR99

SMC

PARTY WHO CALLED: PET
TELEPHONE NO: N/A
WHAT I SAID: I INFORMED PET THAT WE HAD RECEIVED THE NJP EVIDENCE
IN HIS CASE. I READ OFF EACH PIECE OF EVIDENCE I HAD RECEIVED TO
ENSURE PET HAD A COPY, AND HE EXPRESSED NO DESIRE TO SUBMIT A
REBUTTAL.

BRIAN J. GEORGE