DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 
11 June 2003

58X-01

This is in reference to your application for correction of your naval record pursu
provisions of title 10 of the United States Code, section 1552.
It is noted that th
Commandant of the Marine Corps (CMC) has directed removal of your adverse
for 6 April 1996 to 16 May 1997.

t to the

”tness report

A three-member panel of the Board for Correction of Naval Records, sitting in e ~ ecutive
session, considered your application on 11 June 2003. Your allegations of error
were reviewed in accordance with administrative regulations and procedures app 
proceedings of this Board.
application, together with all material submitted in support thereof, your naval r
applicable statutes, regulations and policies.
In addition, the Board considered
the Headquarters Marine Corps 
. dated 19 July 2001 with enclosure, and the advisory opinion from the HQMC
Branch, Judge Advocate Division 

(HQMC) Performance Evaluation Review Board

Documentary material considered by the Board 

d injustice
’ ble to the
ed of your

consi +

(JAM3), dated 3 May 2001, copies of

After careful and conscientious consideration of the entire record, the Board foun
evidence submitted was insufficient to establish the existence of probable
injustice. In this connection, the Board substantially concurred with the
in the advisory opinion from JAM3. Accordingly, your application for
effected by CMC has been denied. The names and votes of the members of the
furnished upon request.

It is regretted that the circumstances of your case are such that favorable action
taken. You are entitled to have the Board reconsider its decision upon
material evidence or other matter not previously considered by the Board.
important to keep in mind that a presumption of regularity attaches to

.

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

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

i 

. aEPARTMENT OF THE NAV

Y

HEADQUARTERS UN

I TED STATES MAR

I NE CORPS

3280 RUSSELL ROAD

QUANT

I CO ,  V I RG I N IA 22134.5103

.

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECT1

c

NAVAL RECORDS

I N REPLY

1610
MMER,
19 
JL

‘IR I

EFER TO :

P

11

10

'ERB
01

N OF

Subj:

BCNR APPLICATION IN THE CASE OF FORMER'SECOND LIE'

CENANT

Encl:

ltr  1610 MMER/PERB of 
(1) Copy of CMC 
(2) SJA to CMC Comment 1070 JAM3 of 3 May 01

18 Jul  01

videnced  by enclosure 

(l),  PERB removed from 
official military record, the fitness report fo

#J@

In this particular case, t

period 960406 to 970516 (EN).
Board finds it necessary to emphasize that the report was
removed because of any substantive issue.
administrative and procedural flaws bothered the Board.
included an incorrect
reporting period/occasion.
report when he completed the Ground Officer Supply Course
July 1996 and then another report from 3 July 1996 until
separation from the Marine Corps on 16 May 1997.
Board's conclusion that the only proper remedy in this si
was to completely expunge the report.

Report

Instead, serio

and an incorrect
should have recei

2.

Enclosure (2) is furnished   to assist in resolving

 
claim that the Board of inquiry was in error or

unjust.

It was

a

the

e
not
s
nese

ad one
In 2
is
le
lation

on

ion
dant

mvv

-.*-i

berformance  Evaluat

Head,
Review Branch
Personnel Management Divi
By direction of the Comma
of the Marine Corps

af
1

,“.
i

DEPARTMENT OF THE NAV

Y

HEAOQUARTERS UNITED

 

STA fES  MARINE CORP

S

3280  RUSSELL ROAD

OUANTICO,

 V IRGINIA 22134.6103

t I
IN 
P
16
MM
18

1

i

PLY REFER TO:

0
R/PERB
JUL  
211.:

Per Marine Corps Order 
Review Board has reviewed allegations of error and  
your Naval record.
Board has directed that your Naval record will be  
removing therefrom the following fitness report:

Having reviewed all the facts of  

the Performance  

1610.11C,

Evaluabion

injubtice  in
re/cord,  the

correkted  by

Date of Report

Reporting Senior

Period of Report

12 May 97

960406 to 

9701516  (EN)

The memorandum will contain

There will be inserted in your Naval record a memorandum
in place of the removed report.
appropriate identifying data concerning the report and state
that it has been removed by direction of the  
the Marine Corps and cannot be made available in any form to
selection boards and reviewing authorities.
that such boards may not conjecture or draw any inference as
to the nature of the report or the events which may 
precipitated it,
unless such events are otherwise 
part of the official record,
System (the data base which generates your Master Brief Sheet)
will be corrected accordingly.

The Automated Fitness Report

Commandantiof

have

It will also state

properlly  a

Since the remainder of your requests do not fall within 
purview of this Headquarters,
the Board for Correction of Naval Records (BCNR)

your case is being

the

ENCL (1)

resolution. A
that agency at

s should be made

direct

y to

Sincerely,

Review Branch
Personnel Management  
Manpower and Reserve  
Department
By direction of the
Of the Marine Corps

Dibision
Afjfairs

Co

andant

ENCL (1)

SJA  to CMC Comment

on 

MMER  r/s of 2 Mar 01

Subj:

PERFORMANCE

EVALUATION REVIEW

__Issue.

We are asked to comment on whether a fitness

1. 
on the subject named officer (SNO), prepared because he 
'administratively discharged from the Marine Corps,  
expunged from his official military file (OMPF) because
claim that the Board of Inquiry (BOI) which initially
recommended his discharge was  

"in  error or unjust."

1070
JAM3
.O 

3 MAY  

2001

? FOR

1

shouli

yeport
IS
be
F 
SNO's

We do not

2.
Comment.
that the BOI wa
properly submitted following that BOI should be expunged
on the alleged
regulations is

lack of 
an issue outside of our purview.

s "in error or unjust."

beleieve the facts support

compliance  with fitness report

 

Whether a fitnes

 

SNO’s

claim
; report
‘4
II
based

3.

Background

On 20 June 1996, SNO received non-judicial  

in violation of Articles 133 and  

(NJPy'for  conduct unbecoming an officer and gentleman, a
adultery,
Code of Military Justice (UCMJ), respectively
awarded a punitive letter of censure and forfeiture of 
pay per month for 2 months.
appeal

Second Lieutenant

.

.

134 of the 

Ur;
Petition:
$
C

McIrvin 

 

punis

lment
Id
LfOml
:r was
_,162.00
id not

b.

On 6 August 1996,

SNO submitted his request for

the Show Cause Authority for the Marine Corps,  

resignation in lieu of administrative proceedings.
October 1996, the Deputy Chief of Staff for Manpower and) Reserve
Affairs,
Petitioner's request for resignation and directed Petitibner to
show cause for his retention in the U.S. Marine Corps.
basis for show cause determination was substandard  
of duty and misconduct.
individual military counsel.

On 26 November 1996, SNO  

On 

2B

idenied

The

perfoirmance
requesited

C .

On 14 January 1997,

the BOI substantiated that  

performed in a substandard manner and committed
then unanimously recommended that SNO be
separated with an Under Other Than Honorable

conditions

SNO

and

ENCL 

(2)

Subj:

PERFORMANCE 

EVALUATION  REVIEW 

BOARD

(PERB):

REQUES

FOR

characterization of service.
the Navy 
conditions (OTH) .

(SecNav)  discharged SNO Under Other Than 

On 30 April 1997, the 

Secre
Honorak

3.

Analysis

a.

,does  not deny that he 

Specifically,

he argues the following: that 

relationship with a woman that he 
Instead, SNO raises a 

involved in a sexual
married to a Marine sergeant.
reasons to support his contention that his BOI was  
in error."
denied effective assistance of counsel; that his command
measures to prevent him from obtaining mitigating  
he hoped to submit at the BOI;
improperly allowed to submit his earlier resignation  
show cause recommendation to the BOI; that he was the 
improper command influence;
lacked integrity;
was defective.

and that the separation board's

None of Petitioner's arguments have merit

that the separation board 

that the government was

P
kr
varj
"unju:

Ir

evident

ary of
e

S
w wa s
ty of
and
was
ook
that

t

1

1

\ra
:.e
..e
It
:.e
t
:e

e
t

n
.i

reqt
vie
men
reconunE

st and
im of
lers
.dation

Alt
writtc
tq

bh
n
a

.ough

.t he
denied

rsult,
t

UCMJ.

bapable

ENCL (2)

b.

his own petition acknowledges 

Petitioner claims that he was denied effective
assistance of counsel because his request for individual
military counsel did not receive a written response.
it would have been preferable for SNO to receive a 
response to his request,
recieved  an oral response indicating the request had bee
because the requested counsel was not available.
Petitioner was represented by his original counsel, who was a
lawyer certified in accordance with Article 27(b)(l),  
Petitioner argues that his attorney's failure to object to the
board members because they were in the same chain of command as
the general officer who appointed them to the board,
demonstrates that he was denied effective assistance of counsel.
Petitioner's argument fails to acknowledge that his attorney
conducted voir dire of the members and found them to be 
of serving in that capacity.
claim that he asked his attorney to object to any of
or that his attorney refused to follow his request.
also claims he was denied effective counsel  
failed to object at specific points during the BOI.
disagreeing in hindsight with counsel's tactical

In addition,

because,his

Petitioner

As a 

Subj:

the BOI, however,

during
was denied effective counsel.
specific military rules of evidence to support the  
objections without recognizing that the military rules
evidence are not applicable at a BOI.

does not establish that Petitioner's
Moreover, Petitioner points to
poten
0

OR

ial

:
BOI  was unjust because his
fitneds

C .

Petitioner claims that his 

command took steps to prevent him from acquiring a  
report he intended to submit at the BOI.
without merit.
besides his own statement,
Moreover,
above action.
covered a 30 day period and had no relevance to whether or not
Petitioner committed the misconduct in question.

Petitioner does hot provide any evidence,;

the fitness report in question only

to prove that his command took the

This argument is

d.

Petitioner argues that it was unjust for the recorder to

He claims  

that the  

introduct$on of
“imprope.$
 
Petitioner t en
$
a,ility

As indicated above,

” on the BOI proceedings.

be able to introduce his resignation request and show cause
recommendation at the BOI.
the documents demonstrates an attempt to impose
command influence
questions the integrity of the board members and their  
to make an independent decision.
merit.
not applicable at 
were admissible and appropriate for consideration.
the introduction of these documents alone does not 
Petitioner's bare assertion that the board members  
integrity or were influenced to reach a particular  
Furthermore,
Petitioner admitted his misconduct,
fellow Marine,
sufficient basis to recommend Petitioner's separation  
OTH.

and thus provided the members with more 

this assertion fails to acknowledge the 

BOI  proceedings.

Therefore, both 

are
the military rules of eviden e
$ ents
dot
Moreover,
prover
lacke/ci
decisiion.

facp  that
wire  of a
than  a
wilth  an

None of 

these  arguments have

adultery with the 

e.

Petitioner claims that the boards recommendation. is
defective because the board recommended that his service be
characterized as
other than honorable conditions."
demonstrates that the board may have desired that he
general discharge.
contradicted by the evidence.
that Under 

Petitioner fails to
&her  Than Honorable Conditions is commonly

"other than honorable" as opposed to

This argument has no merit and is 

Petitioner believes

I' nder
his
re eive

a

d'rectly
ackn wledge

eferred

1

ENCL (2)

Subj:

PERFORMANCE EVALUATION REVIEW BOARD 
OPINION

IN THE CASE OF

(PERB):  REQUES

: FOR

Determinatioc
the,Report  of the

and is categorized as an

"GENERAL (UNDER HONORABLE CONDI

Moreover, the 

"HONORABLE" and

included as an attachment to  

to  as a n "Other Than Honorable"
for administrative purposes.
Worksheet,
was completed by the members at the conclusion of hearing
this worksheet, directly above the members signatures, th
notations
are crossed out to leave only the notation "OTHER THAN
HONORABLE."
other than honorable characterization of service was appr
and that a general discharge was not appropriate.
confirmed by the verbatim transcript of the BOI which  
states that the members recommended that Petitioner  
other than honorable characterization of service.
should be noted that the Secretary of the Navy, not the 
members,
separation and characterization of service.

This action demonstrates that the board beli

was the ultimate decision maker regarding Petitioner's

'OTH"
5

BOI,
, On
!
FIONS)"

?ved  an
lpriate
5
>

This i
ala

recePve  an

Finally, it
board

Recommendation.

For the above reason, we recommend 

4.
PERB disregard Petitioner's claim that his BOI was  
unjust."
that BOI should
compliance with
of our purview.

Whether a fitness report properly submitted fo
be expunged based on the alleged lack 
of:
fitness report regulations is an issue outside
We defer to PERB on that issue.

that

"in  e ror or
lowing

Judge Advocate Division

4

ENCL (2)