DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

SMC
Docket No: 05798-01
31 August 2001

Chairman, Board for Correction of Naval Records
Secretary of the Navy

GYSG
REVIEW OF NAVAL RECORD

, 

USMC-’

(a) Title 10 U.S.C. 1552

12AprOl w/enclosures
19JulOl

(1) DD Form 149 dtd 
(2) HQMC MMER/PERB memo dtd 
(3) Subject’s ltr dtd 
MGySgt ltr dtd  
(4) 
(5) Subject’s naval record

3OJulOl
15AugOl

From:
To:

Subj:

Ref:

Encl:

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed written application, enclosure 
applicable naval record be corrected by removing the fitness report for 1 November 1992 to
15 January 1993. A copy of this report is at Tab A.

(l), with this Board requesting, in effect, that the

2. The Board, consisting of Messrs. Goldsmith and Zsalman and Ms. LeBlanc, reviewed
Petitioner’s allegations of error and injustice on 30 August 2001. Pursuant to the Board ’s
regulations, the majority, Mr. Zsalman and Ms. 
action indicated below should be taken on the available evidence of record. The minority,
Mr. Goldsmith, recommended that Petitioner’s request be denied. Documentary material
considered by the Board consisted of the enclosures, naval records, and applicable statutes,
regulations and policies.

LeBlanc, determined that the corrective

3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations
of error and injustice, finds as follows:

a. Before applying to this Board, Petitioner exhausted all administrative remedies

which were available under existing law and regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

c. On 15 January 1993, the Commanding Officer (CO), 12th Marine Corps District
(MCD) relieved Petitioner of his duties as noncommissioned officer in charge (NCOIC) of
Recruiting Sub Station Mesa, Arizona after having awarded him nonjudicial punishment
(NJP) the day before for driving under the influence (DUI) on an Air Force base. The

$1,706.00 and a punitive letter of reprimand. The
punishment was a suspended forfeiture of 
contested fitness report, which mentions both the relief for cause and the NJP, reflects that
the reporting senior was the CO, Recruiting Station Phoenix, Arizona.

d. The fitness report at issue, documenting Petitioner ’s performance as a staff sergeant

(pay grade E-6), reflects marks of 
“EX” (excellent) or  “OS” (outstanding), except for an
adverse mark of  “BA” (below average) in judgment (item 14g). In  “general value to the
15), Petitioner is marked  “EX” (third best), with 10 peers ranked above him
service” (item 
(six “OS” (best) and four “EX” to “OS” (second best)), one with him and none below. He is
marked as qualified for promotion. In the comment section, the reporting senior speaks
favorably of his performance, but states that he was relieved of his duties as NCOIC after the
CO, 12th MCD found him guilty of DUI on an Air Force base. The reporting senior adds
that until this  “gross error in judgment ” occurred, Petitioner had performed in an outstanding
manner; that he has been counseled; that the reporting senior feels this was an isolated
incident; and that Petitioner has 
“learned a hard lesson ” from his experience. The reviewing
officer concurred with the mark and ranking the reporting senior gave Petitioner in item 15,
but he added no comments. Petitioner did not make a statement in rebuttal. The third
sighting officer review required for an adverse fitness report was not completed; however, as
Petitioner had made no statement, the report received an administrative third sighting at
Headquarters Marine Corps (HQMC). The fitness report is the only document in Petitioner
naval record reflecting the relief for cause, but his record includes other documentation of
the NJP.

’s

e. Concerning the incident for which he received NJP, Petitioner states that while he

was attending a recruiting conference with a Marine Corps gunnery sergeant (pay grade E-7)
and master sergeant (pay grade E-8), the three of them went out on liberty; that they had
drinks; that he offered to call a taxi, as they had been drinking and he was concerned about
his status as a recruiter; that he stated he did not feel comfortable or safe driving; and that
the master sergeant nevertheless ordered him to drive back to the quarters on the base where
the more senior Marines were staying, stating that Petitioner was only a staff sergeant, and
that the master sergeant outranked him. Petitioner says the master sergeant was  “very high
tempered” and that he reluctantly agreed to drive, to avoid confrontation. He says he first
drove to his own residence, where he suggested that they spend the night there, and he
offered to drive them to the base in the morning. However, he reports, the master sergeant
became aggravated, broke some items, and said he wanted to leave. Petitioner says he again
offered to call a taxi, but the master sergeant again declined and demanded to be taken to the
base immediately. Petitioner states he refused, causing the master sergeant to 
violent.” He adds that the master sergeant continually reminded him that he outranked
Petitioner and continued to order him around. He says he then agreed to drive to the base,
and that he kept on asking the gunnery sergeant for guidance, but he  “just said he was not
” Petitioner relates that when they arrived at
going to be responsible if anything happened. 
the gate, the military policeman (MP) smelled the alcohol in the vehicle; that the MP said to
leave the vehicle near the gate, walk to quarters, and pick up the vehicle in the morning; that
Petitioner and the gunnery sergeant complied, but the master sergeant  “got out of the car and

“become

2

started to argue, insulting and finally tried to fight the 
arrested, with Petitioner and the gunnery sergeant walking in freely, but the master sergeant
being handcuffed. Petitioner, who is now a gunnery sergeant, notes he has been passed over
three times for promotion to master sergeant; and he states he has been advised to seek
removal of the DUI incident from his fitness report record.

MPs”; and that they were then all

f.

In support of his application, Petitioner submitted two letters from the reporting
senior, dated 1 September 1995 and 5 April 2001. The reporting senior states that he feels
Petitioner was coerced into driving; and that the master sergeant and gunnery sergeant who
figured in the incident for which Petitioner received NJP for a DUI offense were of less than
solid reputation, and were later relieved because of violations  “identifying their weak
character. 
2001, he says the fact that Petitioner was
the junior and least intoxicated, and was told to drive the car onto the base, was brought out
at his NJP proceeding, where he received the lightest punishment of the three persons
involved.

In paragraph 2 of his letter of 

5 April 

”

g. At enclosure (2) is the report of the HQMC Performance Evaluation Review Board

in Petitioner ’s case. The PERB denied Petitioner ’s request, stating  “there is absolutely
nothing to show the petitioner was not a willing participant ” in the DUI incident.They
added “By his own admission in [his application], the petitioner had options other than
getting behind the wheel of a vehicle when he had too much to drink. 
”

h. Petitioner submitted a rebuttal statement, at enclosure 

(3), to the PERB report,

expressing his disagreement with their opinion that he was a  “willing participant” in the
incident. He states there is a difference between being ordered to do something and
volunteering; that at the time, he was inexperienced in dealing with senior enlisted Marines,
making more awkward the situation of having such personnel order him to drive the car; and
that he did as he was ordered  “without thinking about any potential ramifications. ”

i.

Petitioner provided an additional letter of support, at enclosure 

(4), from a Marine
Corps master gunnery sergeant (pay grade E-9). He says he has a relatively clear memory
of the events surrounding the DUI incident, as he was the head of the team conducting the
training evolution when this incident occurred. He states there is no doubt that Petitioner
made a difficult, but incorrect decision; that when Petitioner was faced with a senior enlisted
Marine ordering him to drive after  “having imbibed too heavily in alcohol, ” he succumbed;
that the master sergeant who gave the order exercised great control over the direction of
Petitioner’s career through his ability to shape the commander ’s opinion of Petitioner; that
Petitioner had every right to assume that a negative response would have led to further
retribution; and that  “There is also little doubt that the  ‘order’ given by the Master Sergeant
may have also included a physical threat if [Petitioner] did not comply. 
gunnery sergeant further states that  “[Petitioner ’s] record before and after this incident is the
true indicator of his integrity, professionalism, and worth to the Corps, not the one time
” He concludes by asserting it is neither right nor just that Petitioner has not yet
incident. 
been promoted to master sergeant, while others involved in the incident have been.

” The master

3

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding the PERB
report, the majority of the Board finds an injustice warranting the requested relief.

Contrary to the PERB statement that there is nothing to show Petitioner was not a 
participant ” in the DUI incident, the majority finds that the supporting letters he furnished
from the reporting senior and the master gunnery sergeant establish he was coerced into
driving while under the influence of alcohol. While they do not 
decision to yield to this coercion, they find it was unduly harsh, under the circumstances, to
relieve him for cause.

condone,Petitioner ’s

“willing

The majority recognizes that much of the contested fitness report is not adverse. However,
they find the entire report should be removed, as they cannot determine the extent to which
treating the DUI incident as grounds for relief for cause prejudiced Petitioner

’s appraisal.

In view of the foregoing, the majority recommends the following corrective action.

MAJORITY RECOMMENDATION:

a. That Petitioner ’s naval record be corrected by removing the following fitness report:

Date of Report

9Feb93

Reporting Senior

Period of Report
To

From
lNov92

15Jan93

b. That there be inserted in his naval record a memorandum in place of the removed

report, containing appropriate identifying data concerning the report; that such memorandum
state that the report has been removed by order of the Secretary of the Navy in accordance
with the provisions of federal law and may not be made available to selection boards and
other reviewing authorities; and that such boards may not conjecture or draw any inference
as to the nature of the report.

c. That the magnetic tape maintained by Headquarters Marine Corps be corrected

accordingly.

d. That any material or entries inconsistent with or relating to the Board

recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s

’s record and

e. That any material directed to be removed from Petitioner

’s naval record be returned

to this Board, together with a copy of this Report of Proceedings, for retention in a
confidential file 
Petitioner ’s naval record.

.maintained  for such purpose, with no cross reference being made a part of

4

MINORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the minority of the Board
concludes that Petitioner ’s application should be denied.

The minority agrees with the majority that Petitioner has provided evidence showing that a
senior enlisted Marine did order him to drive. However, the minority particularly notes the
acknowledgment, in the reporting senior
’s letter of 5 April 2001, that it was brought out at
Petitioner ’s NJP proceeding that he had 
Notwithstanding the evidence that Petitioner was coerced, the minority does not agree it was
unduly harsh to relieve him for cause, as he did exercise questionable judgment by acceding
to the pressure to drive when he doubted his ability to do so safely.

been told to drive the car onto the base.

In view of the above, the recommendation of the minority is as follows:

MINORITY RECOMMENDATION:

a. That Petitioner ’s application be denied.

4.
It is certified that a quorum was present at the Board
the foregoing is a true and complete record of the Board
matter,

’s review and deliberations, and that
’s proceedings in the above entitled

ROBERT D. ZSALMAN
Recorder

./  Q?&g,
tf 
,, / 
RUSKIN

4

JONATHAN S. 
Acting Recorder

5. The foregoing report of the Board is submitted for your review and action.

MAJORITY REPORT

Reviewed and approv

MINORI 

Y

Reviewed d approved:

x

*
(1Vlanpower  And Reserve 

& j&an t General Counsel
Affairs)

DEPARTMENT OF THE NAV

Y

HEADQUARTERS UN

I TED STATES MAR

I NE CORP

S

3280 RUSSELL ROAD

QUANT

I CO ,  V I RG I N IA 22134-5103

:

IN REPLY REFER TO

1610
MMER/PERB
1 9 JUL 

;r‘l'r)k

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION
GUNNERY SERGEANT

CASE OF
USMC

(a) 
(b) 

GySgt
MC0 

DD Form 149 of 12 Apr 01

P1610.7C 

w/Ch l-6

1

MC0 

Per 

1610.11C, the Performance Evaluation Review Board,

1.
with three members present,met on 18 July 2001 to consider
Gunnery Sergeant
Removal of the fitness report for the period 921101 to 930115
(CD) was requested. Reference (b) is the performance evaluation
directive governing submission of the report.

petition contained in reference (a).

The petitioner contends the fitness report at issue was the

2.
result of circumstances beyond his control.To support his
appeal, the petitioner furnishes his own statement and letters
from the Reporting Senior of record.

~

In its proceedings,the PERB concluded that the report is
3.
both administratively correct and procedurally complete as
written and filed.Not withstanding the testimonials by
Lieutenant Colonel
ncerning the petitioner's
performance prior
uent to the incident that resulted
in nonjudicial punishment (NJP),there is absolutely nothing to
show the petitioner was not a willing participant.By his own
admission in reference (a),the petitioner had options other
than getting behind the wheel of a vehicle when he had too much
to drink. Eight years of hindsight do not change the facts.
Simply stated,the NJP occurred and was properly recorded via
the performance evaluation system.

The Board's opinion,based on deliberation and secret ballot
4.
vote, is that the contested fitness report should remain a part
of Gunnery Sergeant

ficial military record.

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION
GUNNERY SERGEANT

ASE OF
SMC

5.

The case is forwarded for final action.

Chairperson, Performance
Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

UNITED STATES MARINE CORPS

MARINE CORPS RECRUITERS SCHOOL

3500 

CHOSIN  AVENUE

SAN DIEGO. CAL IFORNIA 92140

IN REPLY REFER TO

1000
CLM/gfb
15 Aug 01

From:

To:
Via:

Master Gunnery Sergeant

r

Executive Director,Board for Corrections of Naval Records
Gunnery Sergeant

Case of Gunnery

 

Sergean

1. I, Master Gunnery
the following comment

I have had the opportunity to observe Gunnery  
Sergea

ent occurred. There is no doubt that Gunnery
then a Staff Sergeant) made a difficult, but
ion. When faced with a senior enlisted Marine

2.
in
many aspects,before and since the period in question.I find it
especially difficult to bring to mind a Marine who has performed
.more professionally under difficult circumstances.I also have a
relatively clear memory of the events in question, as I was the
Head of the Mobile Training Team conducting the training evolution
when th
Sergean
incorre
ordering him to drive the vehicle after having imbibed too heavily
in alcohol,he succumbed. It should be pointed out that the
Master Sergeant who gave the order exercised great control over
the direction of the Gunnery Sergeant's career through his ability
to shape the Commander's opinion of the Gunnery Sergeant, and the
Gunnery Sergeant had every right to assume that a negative
response would have led to further retribution.There is also
little doubt that the "order"given by the Master Sergeant may
have also included a physical threat if
ery Sergeant did
not comply. Regardless,Gunnery 
as paid for that
error for several years now.For him tocontinueto bear the
brunt of an error,which was relatively minor considering the
circumstances,does not reflect the stated purpose of non-judicial
punishment, as detailed in Part V,Manual for Courts-Martial,
Paragraph l.c. Specifically, that"Nonjudicial punishment...
promotes positive behavior changes in servicemembers..."Positive
change is not possible when the Marine in question believes the
punishment to be lasting and insurmountable.

Sergean

Gunnery 

Sergean

s endeavored for the last eight years

3.
to overcome this minor deviationfrom his otherwise stellar
career. He has continued to seek and be assigned to billets of
increasing responsibility and accountability.At the time of the
incident, the Gunnery Sergeant had recently taken over a difficult
recruiting sub-station as the Noncommissioned Officer in Charge.
Newly promoted to the rank of Staff Sergeant at the time of the
incident, he has since been promoted to Gunnery Sergeant, been
chosen to become a Career Recruiter,been augmented to the active
duty forces,recently moved to a new Recruiting Station, taken
over as the Commander's chief trainer, and served well and
faithfully,despite the agonizing outcome of promotion board
results.

The Gunnery Sergeant's record before and after this incident

4.
is the true indicator of his integrity, professionalism, and worth
to the Corps,not the one time incident.Not only has he served
honorably and faithfully since the incident, he has received a
Navy and Marine Corps Commendation Medal,a Navy and Marine Corps
Achievement Medal,numerous Meritorious Masts and Certificates of
Commendation. Meanwhile, other Marines involved in the incident
have been promoted to Master Sergeant.Those promoted include one
of the senior enlisted Marines who issued the order, and another
who was subsequently relieved from Recruiting Duty for misconduct.
While I am not a believer in the concept of "fair", I am a firm
believer in the concept, and practice of, just and right.
not right, and certainly not just.

This is

5.
The Gunnery Sergeant deserves to be promoted now, as he
already serves as a Master Sergeant de facto, in carriage,
bearing, and conduct. I implore the Board consider his request
for a remedy under the auspices of the whole-marine concept. I
have absolutely no reservations recommending this Marine for
immediate 
Master Sergeant.

,promotion and continued service to the Marine Corps as a