DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

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2 NAVY ANNE

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WASHINGTON DC 20370-510

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CRS
Docket No: 6245-00
6 November 2001

From: Chairman,
Secretary
To:

Board for Correction of Naval Records
of the Navy

Subj: REVIEW OF

VAL RECORD 0

Ref:

(a) 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments

(2) Case Summary
(3) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a
retired enlisted member of the Marine Corps, filed enclosure
with this Board requesting, in effect, that his naval record be
corrected by removing the nonjudicial punishment (NJP) awarded
him on 6 May 1998 and the competency review board proceedings
that reduced him in rank.

  (1)

2. The Board, consisting of Ms. Madison, Ms. Humberd, and Mr.
Geisler, reviewed Petitioner's allegations of error and injustice
on 31 October 2001 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

Documentary material considered by

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

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

C . Petitioner reenlisted in the Marine Corps on 23 May 1992
for six years, after more than thirteen years of prior active
service.
ten months.

The record reflects that he subsequently extended for

In 1996 he was promoted to the rank of GYSGT (E-7).

d. Petitioner served without disciplinary incident until 24

September 1997 when he received NJP for disrespect, two instances
of willful disobedience of a lawful order, and two instances of
failure to obey a lawful order.

Punishment extended to a

suspended forfeiture of pay.

e. Subsequently, Petitioner was reassigned to recruiting duty.

However, on  13 March 1998 he received a page 11 entry for
unsatisfactory performance and was informed that he would be
recommended for relief for cause and a reduction in rank from
GYSGT (E-7) to SSGT (E-6).
On 28 April 1998 Petitioner was
ordered to spend his workday sitting outside the recruiting
instructor's office.
permission to make a
and out on a sign-in sheet that was publicly displayed.
1998 such actions were initiated.
cause was upheld, over his appeal.

He was further required to request
"head call" or go to chow, and to sign in

Subsequently, the relief for

On 6 May

f. Also on 6 May 1998 he received a second NJP for an

unauthorized absence of a day and failure to obey a lawful order,
in that he failed to report for duty when directed to do so.

The
punishment imposed consisted of forfeitures of $1197 per month
for two months.
failure to obey a lawful order was set aside by the appeal
authority.

However, the punishment was not changed.

He then

appealed the NJP for a second time to the commanding general, who
denied the appeal.

g. On  21 May 1998 a competency review board (CRB) recommended

On 22 July 1998 the commanding general

reduction to SSGT.
approved the reduction and denied Petitioner's appeal.
Petitioner then appealed to the Commandant.
record of the result of the appeal, it is assumed that it was
denied.
Marine Corps Reserve (FMCR) as a SSGT.

On 31 March 1999 Petitioner was transferred to the Fleet

While there is no

h. Petitioner argues that his problems with the command came

from racism, his superiors were white and he was black. He
admits that he was guilty of the unauthorized absence which
resulted in the 6 May 1998 NJP,
severe.
incorrectly reduced him.

He also feels that the CRB was not impartial and thus

but that the punishment was too

i. An advisory opinion from the Staff Judge Advocate (SJA) to
the Commandant of the Marine Corps recommends partial relief. In
this regard, the SJA states that Petitioner's charge of racism is
The opinion further states that Petitioner's
without merit.
request for relief in connection with the NJP is also without
merit as he does not deny that he was an unauthorized absentee.
Similarly, no legal error occurred with respect to Petitioner's
However, the SJA also opines, that as a matter of equity
CRB.
the Board should consider suspending the reduction and
reinstating Petitioner to GYSGT.
the fact that Petitioner did not receive the full 60 day period
on the substandard performance program and the possibility that
the command was less interested in rehabilitation than in

This recommendation is based on

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retribution, as evidenced by the order of 28 April 1998 which
"could reasonably be viewed as designed only to humiliate."
CONCLUSION:

The Board concurs with the advisory opinion that the NJP
In this regard, there is

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
relief.
was proper and should not be removed.
no evidence of racism and the Petitioner has presented none.
However, the Board also concludes that the advisory opinion's
other recommendation should be accepted and the record should be
corrected to show that the reduction in rank to SSGT directed by
the CRB process was suspended for six months.

In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.

RECOMMENDATION:

a. That Petitioner's naval records be corrected wherever
appropriate to show that the reduction in rate from GYSGT to
SSGT, imposed on 22 July 1998, was suspended and he was never
actually reduced to SSGT.

b. That the record be further corrected to show that

Petitioner transferred to the FMCR on 31 March 1999 in the rank
of GYSGT vice SSGT.

C . That no further relief be granted.

d. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.

e. That any material directed to be removed from Petitioner's
together with a copy of
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.

4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

ROBERT D. ZSALMAN
Recorder

ALAN E. GOLDSMITH
Acting Recorder

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5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
has been approved by the Board on
authority of reference (a),
behalf of the Secretary of the Navy.

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