DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

CRS
Docket No: 3015-01
9 October 2001

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 3 October 2001.
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 Headquarters Marine Corps dated 26 June
2001, a copy of which is attached.
your rebuttal statement of   28 September 2001.

In addition, the Board considered the advisory

The Board also considered

In this connection, the Board substantially

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.
However, the Board concluded that since all of the forfeitures
from the nonjudicial punishment (NJP) were eventually suspended
and you were never actually required to forfeit any of your pay,
no useful purpose would be served by making a merely cosmetic
change in the amount of forfeitures imposed at the NJP.
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

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

2

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.&QUARTERS 

DEPARTMENT OF THE NAVY
UNllED  STATES MARINE  
2 NAVY ANNEX
WASHINGTON, DC  

20380-1775

CORL

IN  REPLY REFER TO:
1070
JAM4
G JUN  

2001

2 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

‘

._-
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
non-judicial punishment (NJP) he received on 6 July 2000.
Petitioner also requests restoration of all property,
privileges, and rights affected by his NJP.

2.
We recommend
analysis follows

3.

Background

that the requested relief be denied.

Our

a.

On 15 June 2000, Petitioner was issued a Military

Protective Order (MPO) directing him to have no contact with a
female Marine.
Petitioner's command viewed the issuance of an
MPO as the only avenue for dealing with an inappropriate and
potentially dangerous relationship Petitioner was having with a
female Marine who was not his wife.
two menacing letters Petitioner sent to the female Marine in
which he threatened to kill himself if she told anyone about
their relationship.

Of particular concern were

b.

On 26 June  2000, Petitioner violated the MPO by having

On 6 July 2000, Petitioner, then

dinner with the female Marine.
a sergeant, pay grade E-5, received NJP for disobeying a lawful
order in violation of Article 90 of the Uniform Code of Military
Justice (UCMJ).
Petitioner was awarded a reduction to the pay
grade of E-4, forfeiture of $797.00 pay per month for   2 months,
and 15 days extra duty.
Forfeiture of $797.00 pay per month for
1 month was suspended for 6 months.
On 7
July 2000, Petitioner's appeal was granted in part.
Specifically, Petitioner's remaining forfeiture of $797.00 pay
per month for 1 month was also suspended for 6 months.
relief was. granted.

Petitioner appealed.

No other

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

4.

Analysis

a.

No legal error occurred in either the issuance of the
Petitioner violated a lawful

MPO or the imposition of NJP.
order, accepted NJP, and was appropriately punished.
now claims that his NJP was unjust because:
Petitioner, however,
’ (1) he was considering suicide when he violated the
order;.._(2)
he was not consulted with or counseled prior to being issued the
MPO;
with OPNAVINST  
want the MPO.

(3) he believes that the MPO was not issued in accordance
(4) the female involved did not

1752.2a, and;

 

b.

Petitioner's claim that his NJP was unjust because he

was considering suicide is without merit.
Petitioner's
emotional state does not alter the fact that he willfully
disobeyed a lawful written order.
however, was relevant as a mitigating factor in determining
punishment 
and,was given due consideration when Petitioner's
commanding officer suspended, on appeal, the remaining
forfeiture.

Petitioner's emotional state,

C .

Petitioner's claim that his NJP was unjust because he
was not consulted with or counseled prior to being issued the
MPO is without merit.
P1752.3b specifically
authorizes MPO's to be issued ex   parte  if the issuing authority
considers it necessary to ensure the safety and security of
persons for whom the command is responsible.
suicidal ideations provided a reasonable basis for the issuing
authority in Petitioner's case to consider the ex
of an MPO necessary.

Marine Corps Order  

Petitioner's

  parte  issuance

d.

1752.2A is without merit.

Petitioner's claim that his NJP was unjust because the
MPO he was charged with violating was not issued in accordance
with OPNAVINST  
though they contain similar language, the issuance of MPO's in
the Marine Corps is governed by  
1752.2A.
P1752.3b ex parte  MPO's "should have as short a duration as
possible, normally not more than ten days, because opponents
thereto have a right to be heard."
merit, however, because "not normally" does not constitute and
absolute bar on the issuance of ex   parte  MPO's for longer than

MC0 
is correct that under  

P1752.3b not OPNAVINST

Petitioner, however,

Petitioner's argument lacks

As an initial matter,

MC0

.

2

Subj:

OARD FOR CORR

APPLICATION

The 

MC0 

Under 

P1752.2b, Military Protective Orders "are

gre.ater the crisis and
the greater the need to move quickly and to

10 days.
based upon a balancing of interests.
the need to protect,
focus on the safety of the person(s) needing protection.
crisis abates and long term solutions are considered and put into
effect, the need for a  
‘Petitioner's unstable mental state and the menacing tone of the
letters he sent it was reasonable for the issuing
impose an ex  parte  MPO for longer than 10 days pending the
implementation of long term solutions.
Moreover, if Petitioner
questioned the legality of ex   parte  MPO imposed for longer than
10 days,
not flagrantly and willfully disobey the MPO on day 11.

his appropriate course of action was to request mast,

MPO's diminishes."

In light of the

authority_to

 

As the

e.

Petitioner's claim that his NJP was unjust because the

female Marine the MPO prohibited him from having contact with
did not want the MPO is without merit.
a duty to ensure the health, safety, and welfare of the members
of their commands.
had an obligation to take all necessary precautions to ensure
the safety of the female Marine involved.
obligation entailed the issuance of an MPO.

Petitioner's commanding officer, therefore,

In this case, that

Commanding officers have

f.

We note, however,

that the forfeiture awarded Petitioner

authorizes's  forfeiture

5b(2) 

  States (2000

Part V, paragraph 

5c(8), MCM forfeitures are computed on the

exceeds the maximum allowable forfeiture under Part V, paragraph
5b(2) of the Manual for Courts Martial, United
Edition). (MCM).
of not more than one half of 1 months pay for 2 months:
Part V, paragraph  
basis of base pay and,
involved in the punishment,
the new lower rank,
case the forfeiture appears to have been computed at
Petitioner's pre-reduction rank.
forfeiture of pay per month for'2 months Petitioner was awarded
exceeds the maximum allowable forfeiture of $778.00 per month
for  2 months. We, therefore,
error.

even if the reduction is suspended.

the forfeiture must be premised on

where a reduction in rank is also

recommend that BCNR correct this

As a result, the $797.00

Per

.

In this

3

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Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

Conclusion.

5.
Petitioner's request for relief be denied. We, however,
recommend that BCNR correct the excessive forfeiture awarded
Petitioner.

For the reasons noted, we recommend that

Judge Advocate Division