Y
DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

Docket 

AEG
No.5187-99
28 June 2000

Mr.-

Your allegations of error and

In addition, the Board considered the advisory

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 27 June 2000.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary evidence considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
opinions from Headquarters Marine Corps (HQMC) dated 20 December
copies of which are attached.
1999, and 3 and 23 February 2000,
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 found that on 5 December 1991 you reenlisted in the
Marine Corps for five years as a staff sergeant after more than
After receiving an
11 years of active service.
Excellent/Outstanding (EX/OS) fitness report  
(FITREP) and an OS
FITREP, you were promoted to gunnery sergeant (GYSGT; E-7) on 1
February 1993.
FITREP.
On 6 May 1993 a Not Observed (NO) 
disenrolled from the Staff 
to a period of unauthorized absence (UA) from 30 April 1993 to 6
May 1993.
FITREPS.
(NJP) for this 6-day UA.
On 17 August 1993 you began temporary additional duty (TAD) at a
naval hospital, apparently for inpatient alcohol rehabilitation
You
(Level III).
FITREP
then received three more OS  
stated that you successfully completed the SNCO advanced course.

You completed this TAD on 22 September 1993.
FITREPS. Additionally, a NO 

Shortly thereafter, you received another OS

FITREP showed that you had been
NC0 (SNCO) Academy advanced course due

On 10 May 1993 you received nonjudicial punishment

You then received two more OS 

c

The EX 

The reporting senior completed this 

FITREP on 7 June 1996.

indicating that no rebuttal had been

You then received two more OS 

FITREPS.

FITREP for the period 1 June to 10 December 1996

On 14 March 1996 HQMC disapproved your request and

A service record entry of 29 December 1994 reveals that you were
counseled concerning your failure to return from liberty in a
You were then assigned
timely manner while in Tangier, Morocco.
FITREP which closed out on 5 June
to a
1995 referred to your late return from liberty, and the reviewing
officer lowered the overall rating on this report from OS to
EX/OS.
On 10 January 1996 you received NJP for a UA of about nine hours.
About two weeks later, on 26 January 1996, you requested
reenlistment.
directed one-half separation pay and assignment of an RE-4
reenlistment code.
On 21 May 1996 you were convicted by civil authorities of driving
FITREP for the period 27
under the influence of alcohol.
December 1995 to 31 May 1996 noted the most recent NJP and civil
IVDCtt (directed
conviction.
The reviewer signed it
by the Commandant) 
on 18 June 1996 and the third officer sighting was accomplished
at HQMC on 30 July 1996,
submitted.
EX/OS 
The 
commented that you required "additional supervision to accomplish
Also on that date, you received
multiple tasks simultaneously."
an honorable discharge by reason of expiration of enlistment and
an RE-4 reenlistment code.
to this Board, the Performance Evaluation Review Board (PERB) at
HQMC has removed this comment from your last 
The Board first considered your contentions of error concerning
the NJP of 10 January 1996, specifically, that although the
service record entry of 8 
,January 1996 shows that the advice
5 M.J. 238 (CMA 1977) was
required by  United States v. Booker,
given, it does not state that this advice was provided for the
NJP of 10 January 1996; and the entry on the latter date does not
reflect whether you appealed the NJP and, if so, the outcome of
However, the Board agreed with the HQMC advisory
that appeal.
opinion of 20 December 1999 to the effect that any such errors
In this regard, the Board found that the entry of
were harmless.
8 January 1996 reflecting the  Booker  advice is on the same page
and immediately above the entry reflecting the imposition of the
NJP on 10 January 1996.
advice would have been given was prior to the NJP of 10 May 1993,
and the record clearly shows a separate  Booker  advice for this
disciplinary action.
does not provide any information about an appeal of that action,
the Board could not obtain any other documentation on this NJP
since such documentation is routinely destroyed two years after
Accordingly, the Board adhered to a presumption
its imposition.
of regularity and assumed that you either did not appeal the NJP
it was processed in accordance
of 10 January 1996 or, if you did,
with applicable law and regulations.

Additionally, even though the NJP entry

In conjunction with your application

FITREP.

"no liberty" status.

A 

Further, the only other time  Booker

2

ttDC“ 

FITREP is not
FITREP may still be

A 

IIDCtV 
FITREP.

1610.7D, which states that a 

FITREP for the period ending 31 May 1996 was properly

"DCt' 
3004.7a(l) of the directive.

FITREPS at issue, the Board first agreed with
Turning to the two 
the conclusion of the 3 February 2000 advisory opinion that the
@*DCV' 
prepared.
The Board believed that subparagraph 3009.2 of Marine
Corps Order 
required for the first alcohol related incident, means only that
such a report is not mandatory.
written if appropriate under the general guidance set forth in
The Board also noted
subparagraph 
that you had already been through Level III rehabilitation, and
concluded that the DUI conviction was a relapse worthy of a 
ltDCV'
The Board also
report under the guidance in that subparagraph.
agreed that no relief is warranted based on your allegation that
Additionally,
this report was not completed in a timely manner.
the Board could not help but note that even if you are correct
and this 
FITREP should not have been written, the derogatory
'tDC*t 
information in that report would have been included in the next
FITREP.
Since the Board has no authority to direct such action
now, removal of the 
FITREP would provide an unjustifiable
windfall for you since this information would not be reflected in
your next (and last) 
The Board further concluded that
even though the 
FITREP for the period ending 10 December 1996
should have been referred to you for a possible rebuttal because
of the comment to the effect that you required additional
supervision to perform multiple tasks at the same time, the
action of the PERB provided sufficient relief.
Finally, the Board concurred with the conclusion of the 23
February 2000 advisory opinion to the effect that the RE-4
reenlistment code was properly and appropriately assigned. In
your last enlistment you received two 
NJP's, a civil conviction
As a GYSGT, you should have
and an adverse service record entry.
been setting an example of exemplary behavior for junior Marines,
Therefore, the Board believed that
but clearly failed to do so.
HQMC did not abuse its discretion in denying your request for
reenlistment and directing the adverse reenlistment code.
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
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.

The names and

Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of a probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures
Copy to: Mr.