DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

ELP
Docket No. 3117-01
31 August 2001

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 injustice were reviewed in

A three-member panel of the Board for Correction of Navy Records,
sitting in executive session,
2001.
accordance with administrative regulations and procedures
applicable to the proceedings of this Board.
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 the Military Law Branch,
Headquarters, Marine Corps dated 2 July 2001, a copy of which is
attached.

Judge Advocate Division,

considered your application on

Documentary

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 noted your explanation of the
circumstances which led to the three nonjudicial punishments
and your special court-martial conviction, and your response to
the advisory opinion.
curred with the comments contained in the advisory opinion.
Additionally, a Federal Bureau of Investigation report obtained
by the Board shows that your post-service conduct has been marred
by a conviction of bank robbery.
Accordingly, your application
has been denied. The names and votes of the members of the panel
will be furnished upon request.

However, the Board substantially con-

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

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3.
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DEPARTMENT OF THE NAW 

HEADQUARTERS UNITED STATES MARINE
20350-1775

WASHINGTON, DC 

2 

NAVY  ANNEX

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IN REPLY REFER TO:

1070
JAM4

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

,

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL

OF PRIVATE FIRST C
3051 USMC

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 punishments (NJP) he received on 9 May 1986, 14
In addition, Petitioner
January 1987,‘ and 28 April 1987.
request the removal from his SRB and OMPF of all entries related
to his special court-martial (SPCM) on 18 June 1987.
also request the restoration of all property, privileges, and
rights affected by his  

NJP's and his SPCM.

Petitioner

2.
Our

We recommend that Petitioner's request for relief be denied.
analysis follows.

3.

Background.

a.

On 9 May 1986, Petitioner received NJP for disobedience
of a lawful order in violation of Article 91 of the Uniform Code
Petitioner, then a lance corporal,
of Military Justice (UCMJ).
pay grade E-3, was awarded a reduction to the pay grade of   E-2
and a forfeiture of $100.00 pay per month for 2 months.
reduction was suspended for a period of 6 months.
did not appeal.

The
Petitioner

b.

On 14 January 1987,

Petitioner received NJP for

disobedience of a lawful order and wrongfully communicating a
threat in violation of Articles 91 and 134 of the UCMJ,
respectively.
pay per month for 2 months.

Petitioner was awarded a forfeiture of $183.00

Petitioner did not appeal.

C .

On 28 April 1987,

Petitioner received NJP for

unauthorized absence in violation of Article 86 of the UCMJ.
Petitioner,
reduction to the pay grade of E-2 and 30 days of Correctional
Custody.

then a lance corporal, pay grade E-3, was awarded a

Petitioner did not appeal.

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Subj:

BOARD FOR CORRECTION OF NAVAL RE
IN THE CASE OF PRIVATE FIRST

CLAS

d.

On 29 April 1987,

Petitioner willfully disobeyed a

On 18 June 1987,

lawful order.
Petitioner was convicted by a
SPCM of disobedience of a lawful order in violation of Article
91 of the UCMJ.
Petitioner was sentenced to 75 days of
confinement and forfeiture of $100.00 pay per month for 6
months.

3.

Analysis

a.

No legal error occurred in the imposition of

Petitioner, however, now
(1) his NJP's of 9 May 1986 and 14 January 1987

Petitioner's NJP's or at his SPCM.
claims that:
were unjust because he was not afforded an opportunity to review
the evidence;
(2) his NJP of 28 April 1987 should be expunged
because he was subsequently tried by SPCM for the same offense;
(3) his SPCM should be expunged because it was the result
and,
of his refusal of the punishment from the unjust NJP he received
on 28 April 1987.

Petitioner's claims are without merit.

b.

Petitioner's claim that his NJP's of 9 May 1986 and 14

January 1987 were unjust because he was not allowed to review
the evidence is without merit.
Given that a presumption of
regularity attaches to official records, the burden is on the
Petitioner to establish any irregularity.
satisfy this burdenbecause he provides no evidence beyond his
unsworn statement that any irregularity occurred.
Petitioner was afforded an opportunity to consult with an
attorney prior to accepting both NJP's and was aware of his
right to refuse NJP.
was found guilty, and was punished.
either NJP. If, at the time,
procedurally defective,
and not over 14 years later.

he believed that his NJP's were
he should have appealed the NJP's then

Petitioner, however, accepted both NJP's,
Petitioner did not appeal

Petitioner fails to

Furthermore,

C .

Petitioner's claim that his NJP of 28 April 1987 should

be expunged because he was subsequently tried by SPCM for the
same offense is without merit.
court-martialed for the same offense.
on 28 April 1987 for unauthorized absence in violation of
Article 86 of the UCMJ.
disobedience of a lawful order in violation of Article 91 of the
UCMJ for disobeying a lawful order on 29 April 1987.

Petitioner was not subsequently
Petitioner received NJP

Petitioner was tried by SPCM for

While the

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t

Subj:

BOARD FOR CORRECTION OF NAVAL

RECO
PRIVATE FIRST CLASS
51 USMC

order Petitioner disobeyed was related to the punishment he
received at NJP,
separated and distinct violation of the UCMJ.

Petitioner's disobedience constituted a

d.

Petitioner's claim that his SPCM conviction should be

Petitioner's

Petitioner erroneously

Neither his NJP on 28 April

With respect to the NJP of 28 April 1987,

expunged because it is the result of his refusing the punishment
of an unjust NJP is without merit.
1987 nor his subsequent SPCM were unjust.
arguments are fundamentally flawed.
claims each NJP was unjust because the-incidents were not
adequately investigated; however, in each instance Petitioner
was provided the opportunity to consult with counsel and not
accept NJP.
Petitioner argues that he was subsequently tried by SPCM for the
Petitioner then asks BCNR to set aside his SPCM
same offense.
because his NJP of 28 April 1987 was unjust.
circular.
April 1987 for unauthorized absence.
punishment he received at NJP,
for the separate and distinct offense of disobedience of a
lawful order.
Petitioner would have had the opportunity to
object or request relief at the subsequent SPCM but instead
The SPCM was subsequently
pleaded guilty to the offense.
reviewed in accordance with Article 64(a), UCMJ.
4.
request for relief be denied.

Petitioner received NJP on 28

Recommendation.

Accordingly, we recommend that Petitioner's

Even though related to the

Petitioner's subsequent SPCM was

As previously noted,

This argument is

Judge Advocate Division