DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

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WASHINGTON DC 20370.510

0

CRS
Docket No: 651-01
14 August 2001

Chairman, Board for Correction of Naval Records
Secretary of the Navy

VAL RECORD OF

P.1070.12H  

(a) 10 U.S.C. 1552
MC0 
(b) 
(c) 
MC0 5300.12
(1) Case Summary
(2) Subject's naval record

(IRAM)

From:
To:
Subj:

Ref:

Encl:

1. Pursuant to the provisions of reference (a), Petitioner, a
member of the Marine Corps, applied to this Board requesting, in
effect, that his naval record be corrected by removing the 7
April 1993 nonjudicial punishment (NJP) and the Administrative
Remarks (page 11) entries of 19 April 1993 and 23 October 1996.
2. The Board, consisting of Messrs. Whitener, Lightle, and
Harrison, reviewed Petitioner's allegations of error and
injustice on 1 August 2001 and, pursuant to its regulations, both
the majority and minority determined that certain corrective
action 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.

b. Although Petitioner's application to the Board was not
filed in timely manner,
the statute of limitations and review the application on its
merits.

it is in the interest of justice to waive

C . Petitioner enlisted in the Marine Corps on 15 August 1989
At the time of enlistment, he had completed twelve
at age 17.
The record reflects that Petitioner
years of formal education.
served well for more than three years and was advanced to CPL
(E-4).

d. Petitioner's record reflects that on 7 April 1993 he

received NJP for consuming alcohol in the barracks and drunk and
disorderly conduct.
forfeitures of $300 per month for two months, restriction for 30
days, and reduction in rank to LCPL (E-3).
punishment was suspended for six months.
by service record entries of 5 and 8 April 1993.

The punishment imposed consisted of
However, all

This NJP is documented

e. On 19 April 1993 a page 11 entry was made concerning the

Recommended corrective action was completion of a

same alcohol related incident that resulted in the NJP of 7 April
1993.
battalion level alcohol rehabilitation program.
An addendum to
the entry of 25 May 1993 notes that Petitioner completed this
program.
The entry further notes that he desired to submit a
rebuttal, but there is no evidence that one was submitted.

f. On 26 May 1995 Petitioner reenlisted.

been promoted to SGT (E-5).

He has subsequently

cl* On 23 October 1996 Petitioner received a page 11 entry

concerning various deficiencies in his performance.
The entry
referred to earlier counselings, apparently informal, in February
and August 1996.

h. Petitioner's fitness report for the period 11 June 1996 to

lloutstandingll, along with two other

3 March 1997 rated him 
Marines.
The 23 October 1996 page 11 entry was not mentioned,
nor were any of the 
The
report refers to Petitioner as a "proficient and intelligent 
and states that he 

deficincies set forth in the entry.
npossesses unlimited qrowth  

potentiall'.
' An advisory opinion of 20 March 2001 from the Manpower
.

NCO*'

Headquarters

Manzgement Information Systems Division (MIFD)
Marine Corps (HQMC), notes that on 8 January 
2bOO Petitioner's
NJP was set aside by his current commanding officer (CO).
Such
action was taken based on a letter from the CO who imposed the
NJP, who essentially stated that Petitioner's misconduct was an
aberration and it should not prevent Petitioner from achieving
career goals.
The MIFD opinion also cites references (b) and (c)
in concluding that the CO properly directed the page 11 entry of
19 April 1993, given Petitioner's alcohol related incident.
Concerning the 23 October 1996 page 11 entry, the opinion also
found it proper because of the deficiencies in Petitioner's
performance and the need to document those problems.
the advisory opinion recommends denial of Petitioner's requests.
However, the opinion defers to the Military Law Branch of HQMC
concerning the NJP.

In summary,

5 An opinion from the Military Law Branch (JAM), recommends
that Petitioner's request be granted in part and denied in part.
The opinion recommends removal of the entries documenting the NJP
of 7 April 1993, based on the 

CO's action of 8 January 2000.

2

Further, a page 11 entry is required for any alcohol

The majority agrees with JAM that both entries

since it was not dependent on the
JAM offers no comment on the page 11 entry

However, JAM concurs with MIFD that the 19 April 1993 page 11
entry should not be removed,
NJP.
related misconduct.
of 23 October 1996.
MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, a
majority of the Board, consisting of Messrs. Lightle and
Harrison, concludes that Petitioner's request warrants partial
relief.
documenting the NJP of 7 April 1993 should be removed.
However,
the majority disagrees with both MIFD ahd JAM and concludes that
the page 11 entry of 23 October 1996 should also be removed since
the fitness report covering that period does not mention any of
the deficiencies addressed in the entry.
The majority believes
that if these deficiencies were serious enough to warrant a page
11 entry, they should have been mentioned in the fitness report.
Since they were not, the majority believes an informal counseling
would have been more appropriate than the page 11 entry.
However, the majority concurs with the MIFD and JAM advisory
opinions that the page 11 entry of 19 April 1993 should remain in
In summary, the majority believes that the NJP and
the record.
the page 11 entry of 23 October 1996 should be removed but the
entry of 19 April 1993 should remain in the record.
MAJORITY RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing all
This corrective action
references to the NJP of 7 April 1993.
should include but not necessarily be limited to, removal of the
page 12 entries dated 5 and 8 April 1993.

b. That the record be further corrected by removing the page

11 entry of 23 October 1996.

C . That no further relief be granted.
d. 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.

e. That any material directed to be removed from Petitioner's
together with a copy of
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
MINORITY CONCLUSION:

The minority member of the Board, Mr. Whitener, agrees with the
majority that the NJP should be removed from the record.
However, he disagrees with the majority's recommendation to
remove the page 11 entry of 23 October 1996.
In this regard, he
believes that the reporting senior was probably attempting to do
Petitioner a favor by not mentioning the counseling entry of 23
October 1996 on the subsequent fitness report due to his improved
performance.
The minority member is unwilling to conclude that
Petitioner's deficiencies did not warrant the page 11 entry at
the time it was made.
However, the minority member does believe
that the page 11 entry of 19 April 1993 should be removed from
the record.
Clearly, this entry resulted from the same alcohol
related incident that prompted the CO to impose NJP.
Since the
NJP has now been set aside, the minority member believes it would
be unfair to leave the page 11 entry in the record.
In summary,
the minority believes that the NJP and the page 11 entry of 19
April 1993 should be removed,
but the entry of 23 October 1996
should remain in the record.
MINORITY RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing all

references to the NJP of 7 April 1993.
This corrective action
should include but not necessarily be limited to removal of the
page 12 entries dated 5 and 8 April 1993.

b. That the record be further corrected by removing the page

11 entry of 19 April 1993.

C . That no further relief be granted.
d. 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.

e. That any material directed to be removed from Petitioner's
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
4. 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.

together with a copy of

@/a7

ROBERT D. ZSALMAN
Recorder

ALAN E. GOL MITH
Acting Recorder

4

5. The foregoing action of the Board is submitted for your review
and action.-

MAJORITY REPORT APPROVED:

MINORITY REPORT APPROVED:

G. 

lwmi

JOSEPH 
Assistant General Counsef
 

(Manpower And Reserve

Aftairs)