DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

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WASHINGTON DC 20370-510

0

CRS
Docket No: 3200-01
21 August 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.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 21 August 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.
opinion furnished by Headquarters Marine Corps dated 2 July 2001,
a copy of which is attached.

In addition, the Board considered the advisory

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.
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

In this connection, the Board substantially

The names and

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

Enclosur

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DEPARTMENT 

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HEADQUARTERS  UNITED STATES MARINE  

OF 
2 NAVY ANNEX

THE NAW 
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WASHINGTON, DC 20350-1775

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IN REPLY REFER To:

1070
JAM4
0 2  

JUL 

2001

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS-  

(BCNR),  

APPLI-CATIQN

p,rovide  an opinibn on Petitioner's request

We are asked to  

1.
for the removal from his service  
military personnel file (OMPF) of all entries related to the
nonjudicial punishment (NJP) he received on 30 June 2000.
Petitioner also requests the restoration of all property,
privileges,

and rights affected by that NJP.

recor_d  book (SRB) and official

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

2.
Our analysis follows.

3.

Background

a.

On 17 June 2000,

Petitioner was arrested for breach of

peace in Myrtle Beach, South Carolina.
Petitioner paid a $199.00 fine and was released.

On the same day,

Petitioner received NJP for breach of

On 30 June 2000,
and drunk and disorderly conduct, in violation of

b.
peace,
Articles 116 and 134, Uniform Code of Military Justice (UCMJ),
respectively.
Petitioner,
reduction in grade to E-3 and forfeiture of $667.00 pay per
month for 1 month.

then a corporal, pay grade E-4, was awarded

Petitioner accepted NJP and pleaded guilty.

Petitioner did not appeal.

4.

Analysis.

a.

Petitioner fails to allege any error or injustice on his

attached an unsigned letter

Petitioner, however,

DD Form 149.
from his wife to his commanding officer and a signed letter from
his wife to the Commandant of the Marine Corps in which
Petitioner's wife asserts that Petitioner's NJP was unjust. We
address these allegations here on the theory that by attaching
these letters Petitioner intended to make them his own.
Specifically,
unjust because:

we address the claims that Petitioner's NJP was

(1) other Marines did not receive NJP for

Subj:

BOARD FOR CORR
IN THE CASE 0

civilian arrests;
was fabricated;
off-base on his personal time; and,
paid a civilian fine for the same misconduct.
claims have merit.

(2) the charge of drunk and disorderly conduct
(3) Petitioner's violations of the UCMJ occurred
(4) Petitioner had already
tnes'e

None of 

b.

Petitioner's claim that his NJP was unjust because other

The misconduct of other Marines does not absolve

Marines did not receive NJP as the result of civilian arrests is
without merit.
Petitioner from his own misconduct.
treatment only provides grounds for  
factors exist:
treatment of co-accused is widely dissimilar; and the
dissimilarity resulted from improper motive on the part of the
authority that jointly disposed of the offenses.
factors are present in this case.

Moreover,
rel‘ief  if the following
the cases are factually indistinguishable; the

disparate

None of these

C .

(1) that the accused was drunk,

or drunk and disorderly; and,

The elements of drunk and disorderly conduct under

Petitioner's claim that his NJP was unjust because the
charge of drunk and disorderly conduct was fabricated is without
merit.
Article 134 of the UCMJ are:
disorderly,
of the accused was prejudicial to good order and discipline or
The statements of the other Marines
service discrediting.
present and the civilian police citation sufficiently establish
both of these elements.
Department to cite Petitioner with breach of peace does not
limit the Marine Corps'
Additionally,
both offenses alleged.

disposition of the offense.

Petitioner accepted the NJP and pleaded guilty to-

The decision of the Myrtle Beach Police

(2) that the conduct

d.

Petitioner's claim that his NJP was unjust because his

misconduct occurred off base on his personal time is specious.
It is immaterial that Petitioner's misconduct occurred off base
while on liberty because those facts do not limit the
Article 2 of the UCMJ
commander's ability to impose NJP.
establishes jurisdiction over members of the regular components
of the armed forces.
limited by a Marine's location or duty status.

Jurisdiction under Article 2 is not

e.

Petitioner's claim that his NJP was unjust because he

had already paid a fine for the civilian offense is without
merit.

"may not be imposed for offenses tried by'a

Although NJP

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Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

authbrized  by the secretary
Manual for Courts Martial, United States, Part V,.

State or foreign court unless  
concerned,"
par.
 
If(S)
JAGINST 
case was previously tried in civil courts.

5800.7C  specifically prohibits NJP in

I Petitioner was never actually "tried" in court.

instances where a

Conclusion.

5.
recommend that the requested relief be denied

Accordingly,

for the reasons

noted, we

Head, Military Law Branch
Judge Advocate Division

3