DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 806-00
30 August 2000
Dear
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.
Your allegations of error and
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 30 August 2000.
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.
opinion furnished by the Assistant Staff Judge Advocate for
Military Law, Headquarters Marine Corps dated 13 April 2000, a
copy of which is enclosed.
rebuttal statement of 2 June 2000.
In addition, the Board considered the advisory
The Board also considered your
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.
concurred with the comments contained in the advisory opinion.
The names and
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
In this connection, the Board substantially
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
Enclosure
2
DEPARTMENT OF THE NAVY
HEADOUARTERS UNITED STATES MARINE CORPS
2
NAVY ANNEX
WASHINGTON, DC 20380-1775
IN REPLY REFER TO:
1070
JAM3
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj: BOARD FOR CORRECTION
IN THE CASE OF PRIVAT
3381 U.S. MARINE CORPS
ON
We are asked to provide an opinion
on Petitioner's request
1.
for correction of his grade at discharge from private to private
first class (PFC).
We recommend that the requested relief be denied.
2 .
analysis follows.
Our
3 .
Background
a.
On 9 April 1987,
Petitioner was punished at
in violation of Article 91, Uniform
nonjudicial punishment (NJP) for insubordinate conduct toward a
noncommissioned officer,
Code of Military Justice (UCMJ).
paygrade E-l and 15 days restriction.
suspended for a period of 3 months, at which time unless sooner
On 13
vacated,
April 1987, the suspension was vacated for Petitioner's failure
to obey a lawful order,
Petitioner was reduced to
it would be remitted without further action.
in violation of Article 92, UCMJ.
He was awarded reduction to
The reduction was
paygrade E-l.
b.
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.
forfeiture of $438.00 pay per month for 6 months, and a bad
On 12 August 1987,
conduct discharge.
(CA) approved the findings and sentence.
his action without the benefit of the advice of the Staff Judge
Advocate (SJA) as required by Rule for Court-Martial (R.C.M.)
the record of trial was not forwarded for
1106; in addition,
as required by law.
appellate review,
Petitioner was ordered to involuntary appellate leave.
On 4 September 1987,
the convening authority
The CA, however, took
_
C .
On 15 July 1989,
the case was finally reviewed by the
SJA, Naval Base, Philadelphia, Pennsylvania.
there had been an excessive and unwarranted post-trial delay in
He concluded that
.
Subj: BOARD FOR CORRE
IN THE CASE OF
3381 U.S. MARINE CORPS
ION
/
.
forwarding the case for appellate review, and he recommended
that that the original CA's action be rescinded, and the charges
be set aside and dismissed.
disapproved the sentence,
specifications.
from the Marine Corps.
On 17 August 1989, the CA
and dismissed the charges and
Petitioner was then administratively separated
d.
Petitioner contends that since one of the charges tried
at his court-martial also provided the basis for the earlier
vacation of the suspension of NJP, he should be restored to the
paygrade of E-2.
This argument is without merit.
Our analysis
.
follows.
Analysis.
Prior imposition of NJP is not a bar to
4.
subsequent trial by court-martial for the same offense.
Moreover, a vacation proceeding is not a separate disciplinary
The NJP
proceeding from the NJP that imposed the punishment.
authority's vacation of the suspension of punishment, therefore,
in no way hindered his authority to refer the charges, based on
the same misconduct, to a court-martial.
to Petitioner,
SJA's advice, before acting on his case, was cured by the
subsequent dismissal of the charges and specifications.
resulting from the CA's failure to consider his
Finally,
any prejudice
Conclusion.
5 .
recommend that the requested relief be denied.
Accordingly,
for the reasons noted, we
Head, Military Law Branch
Judge Advocate Division
2
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