DEPARTMENT OF THE NIVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 203705100TRG
Docket No: 6994-00
17 May 2001
uIUEUmUIhuim
This is in reference to your application for correction of your naval
record pursuant to the provisions of Title 10 of the United States Code,
section 1552.
A three—member panel of the Board for Correction of Naval Records, sitting
in executive session, considered your application on 15 May 2001. 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 furnished by
Headquarters Marine Corps, a copy of which is enclosed.
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 connection the
Board substantially concurred with the comments contained in the advisory
opinion.
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
Enclosure
Dear
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
2 NAVY ANNEX IN REPLY REFER TO:
WASHINGTON, DC 20380-1775
1070
JAM 3
2 MAR
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL
RECORDS
Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION 4 ~> IN THE
CASE OF
Ref: (a) Article 15, UCMJ
1. We are asked to provide an opinion on Petitioner’s request for the
removal from his service record book (SRB) and official military personnel
file (OMPF) of all entries related to the nonjudicial punishment (NJP) he
received on March 25, 1999 and restoration of all property, privileges, and
rights affected by that NJP.
2. We recommend that the requested relief be denied. Our analysis
follows.
3. Background. Based upon a review of correspondence between Petitioner
and the Office of Legislative Affairs at Headquarters, U.S. Marine Corps,
it appears that on 25 January 1999, charges against Petitioner of
disobeying a lawful order and indecent acts, in violation of Articles 92
and 134, Uniform Code of Military Justice (UCMJ) were investigated pursuant
to Article 32, UCMJ. On 25 March 1999, in accordance with the terms of a
pre-trial agreement that provided, in part, for disposition of charges by
NJP under reference (a) rather than trial by court-martial, Petitioner
accepted NJP and pled guilty to violating Article 92, UCMJ. The charge
alleged that Petitioner violated a lawful order by wrongfully having
alcohol in his barracks room. SNN was awarded reduction in grade to private
first class. Petitioner appealed the NJP, but the appeal was denied
4. Analysis
a. Petitioner argues that it was unjust to hold his NJP at the
battalion level and that the punishment he received was disproportionate to
the offense committed. These arguments are without merit. Petitioner’s
commanding officer properly exercised his discretion to hold battalion
level NJP. The
4
Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
maximum punishment authorized at NJP for violating Article 92 is forfeiture
of not more than one-half of 1 month’s pay per month for 2 months,
reduction to the next inferior pay grade, extra duties fo~p not more than
45 days, and restriction to specified limits for not more than 60 days. The
only punishment awarded t~ ~ëtitioner was reduction in grade. There is no
indication that the NJP authority abused his discretion in punishing
Petitioner with a reduction in rank.
b. Petitioner attempts to show that his punishment was unjust by
providing a statement from his former roommate that claims Petitioner was
not aware of the alcohol in their barracks room. This information, however,
conflicts with information contained in other documents submitted by
Petitioner, indicating that witnesses at the Article 32 testified that
Petitioner was aware of the alcohol in his barracks room. Petitioner also
alleges that his command withheld exculpatory evidence from him, but
provides no evidence to support this claim. A pre~umption of regularity
attaches to Petitioner’s NJP proceedings, and that presumption cannot be
rebutted by Petitioner’s bare assertions.
5. Conclusion. NO~Pr the reason noted, we recommend that the requested
relief be granted.
IN
Assistant head, Military Law Branch
Judge Advocate Division
2
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opinion furnished by Headquarters Marine Corps dated 28 February 2001, a copy of which is attached. We recommend that the requested relief be denied. grade from sergeant to corporal, forfeiture of $780.00 pay per Petitioner was awarded reduction in Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION month for 2 months, and 60 days restriction.
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In addition, the Board considered the advisory opinion furnished by Headquarters Marine Corps, dated 19 August 2003, a copy of which is attached. The BOI also substantiated misconduct or moral or professional dereliction as evidenced by the commission of military or civilian offenses, which, if prosecuted under the UCMJ, could be punished by six months or more, or would require proof of specific intent for conviction. The BOI recommended Petitioner's retention.
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On 13 October 1999, Petitioner, then a Petitioner's appeal was denied. received NJP for intending to deceive 60 days Analysis. Petitioner, however, was just following the orders of his staff sergeant when he typed the false official document.
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On 19 December 1997, 3. received NJP for unauthorized absence a&d disobedience of a lawful order- in violation of Articles 86 and 92 of the Uniform Code of Military Justice Petitioner, then a corporal, grade E-4, of $598.00 pay per month for 2 months. appeal was denied on 8 January 1998. was awarded reduction in grade to E-3 and The forfeiture was Petitioner's (UCMJ), respectively. Petitioner's appeal was denied on 8 (PT) by lawful written order and the Petitioner was assigned to 4.
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opinion furnished by the Assistant Staff Judge Advocate for Military Law, Headquarters Marine Corps dated 13 April 2000, a copy of which is enclosed. On 29 June 1987, Petitioner was convicted by a special court-martial of failure to obey a lawful order, willfully disobeying a superior commissioned officer, resisting apprehension, and escape from custody in violation of Articles He was awarded confinement for 4 months, 90, 92 and 95 UCMJ. forwarding the case for appellate review, and he...
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Petitioner’s application which requests that the entry reflecting his nonjudicial punishment (NJP) of 30 August 1996 be removed from his official records. He received two adverse fitness reports during this period, from two different Reporting Seniors and Reviewing Officers. Petitioner’s Regimental Commander also Petitioner was found guilty of that offense b. Petitioner provides no basis for removal of the record of NJP.
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1070 JAM4 1 1 JUN 2001 MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION We are asked to provide an opinion 1. for the removal from his service record book (SRB) and his official military personnel file (OMPF) of all entries related to his non-judicial punishment (NJP) of 17 June 1994. on Petitioner's request _.- We recommend that the requested relief be denied. Petitioner, however, his record...
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M&RA noted specifically that Petitioner's relationship with the On 23 June 1999, the petty officer Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN(M&RA)) directed Petitioner's discharge with a General (Under Honorable Conditions) character of service. this relief is neither available Accordingly, a Petitioner supports his request for an honorable characterization of service with essentially four arguments: b. one, his discharge was improper because it was not based on...
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They also considered the evidence considered at your nonjudicial punishment (NJP) proceedings, and your counsel’s undated rebuttal letter. 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 . 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...