DEPARTMENT OF THE NAVY
B?ARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
CRS
Docket No: 5781-00
21 March 2001
Your allegations of error and
In addition, the Board considered the advisory
application for correction of your
provisions of Title 10, United
Dear
This is in reference to your
naval record pursuant to the
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 20 March 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 13 February
2001, a copy of which is attached.
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.
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.
In this connection, the Board substantially
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
HEADQUARTERS UNITED
2
NAVY ANNEX
WASHINGTON, DC
STAES MARINE CORPS
20380-1775
IN REPLY REFER
TO:
1070
JAM4
13 FEB 2001
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj:
BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
_
b(
_-
Encl:
(1) Copy of page 12, Petitioner's SRB
We are asked to provide an opinion on Petitioner's request
1.
that his non-judicial punishment (NJP) be expunged from his
service record book (SRB) and official military personnel file
(OMPF).
our
Background.
On 21 October 1996, Petitioner, then a
We recommend that the requested relief be denied.
received NJP for indecent assault in violation of
2.
analysis follows.
3.
corporal,
Article 134,
reduction in grade to lance corporal
$604.00 per month for 1 month, and 30 days extra duty. The
reduction in grade and forfeiture were suspended for a period of
3 months.
4.
Petitioner did not appeal his NJP.
Uniform Code of Military Justice.
(LCpl), forfeiture of
Analysis
He was awarded a
a.
Petitioner now asserts that his NJP was unjust because
there was insufficient evidence to support the charge; because
the legal advice he received was not in his best
because his performance was and has been otherwise meritorious.
interest;.,and
b.
Petitioner's claim that his NJP was unjust due to
insufficient evidence is without merit.
is an administrative proceeding, not a criminal trial; formal
Moreover, the
rules of evidence, therefore, do not apply.
standard of proof at NJP is
rather than "beyond a reasonable doubt."
application to BCNR indicates that the alleged victim
the command with a statement describing the incident.
"by a preponderance of the evidence"
Petitioner's
Non-judicial punishment
provided
.
Subj:
BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
enclosure (2) of Petitioner's application describes
In addition,
this incident as a case of "he said, she said." While it is not
possible to determine exactly what evidence persuaded the
Petitioner's commanding officer of his guilt, that officer could
properly choose to believe the alleged victim's statement over
the accused's denials.
regularity attaches to official records, and that
failed to appeal his NJP,
that his NJP was unjust due to a lack of evidence.
given that a presumption&f
Petitio-Ker
we find no merit in Petitioner's claim
Moreover,
C .
Petitioner's claim that the legal advice he received was
not in his best interest is without merit.
provide any evidence to support this claim.
opportunity to consult with counsel is a prerequisite for the
admission of records of NJP as sentencing evidence at a
subsequent court-martial,
imposition of NJP itself.
entitled to any relief based on his assertion
ill-advised by counsel.
it is not a prerequisite to the
Accordingly,
Petitioner is not
that he was
Petitioner fails to
Moreover,
while the
d.
Petitioner's claim that his otherwise
performance renders his NJP unjust is without
Petitioner's performance before and after the
relevant to the commanding officer's decision
the incident in question.
5.
Accordingly,
recommend that the Petitioner's
Conclusion.
._
request
for the reasons
._
~
.
.
_
meritorious
merit.
NJP is simply not
to award NJP for
noted, we
for_ relief be denied.
Judge Advocate Division
Military Law Branch
“
‘
2
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