DEPARTMENT OF THE  NAVY 

B O A R D   F O R   C O R R E C T I O N   OF  NAVAL  R E C O R D S  

2   N A V Y A N N E X  

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

CRS 
Docket No:  6299-01 
6 March 2002 

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 6 March 2002.  Your allegations of error and 
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.  In addition, the Board considered the advisory 
opinion furnished by Headquarters Marine Corps dated 28 November 
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.  In this connection, the Board substantially 
concurred with the comments contained in the advisory opinion. 
Accordingly, your application has been denied.  The names and 
votes of the members of the panel will be furnished upon request. 

It is regretted that the circumstances of your case are such that 
favorable action cannot be taken.  You are entitled to have the 
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. 

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 

---------------  -- - - - - - - - - -  - 

HEAWUARTERS UNITED STATES MARINE CORPS 

2 NAVY ANNEX 

WASHINGTON, DC 203-1775 

IN REF'LV REFER TO 

1070 

MEMORANDUM  FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Sub]:  BOARD FOR CORRECTION OF NAVAL  RECORDS  (BCNR) APPLICATION 

IN THE CASE OF 
0- 

1.  We are asked to provide an opinion on Petitioner's  request 
that his non-judicial  (NJP) punishment  of May  17, 2001 be 
removed  from his service record book and official military 
personnel  file  (OMPF) . 

2.  We recommend-that partial  relief be granted.  Our dnalysis 
follows. 

3.  Backaround 

a.  On April  26, 2001, Petitioner was wearing an 

organizational uniform  incorrectly  (i.e. blue coveralls with 
white socks) and was directed by  a sergeant, a  superior 
noncommissioned  officer  (NCO), to put  on green or black  socks. 
Petitioner initially asserted that he did not have th? 
appropriate color socks and had  left them at his workspace. 
Petitioner defiantly talked back  saying words to the effect, "no 
organization had  issued him that uniform" and later telling a 
master sergeant  "that he had  his socks in his pocket." 

b.  On the same day, while conducting field day in his 

barracks room, Petitioner was given direction on making his rack 
by a corporal, a superior noncommissioned officer.  After being 
informed that his room would be reinspected later, Petitioner 
responded with an inappropriate comment by saying, words to the 
effect "I'll have coffee and doughnuts ready for you."  The NCO 
took offense to the comment. 

c.  On May 17, 2001, Petitioner received NJP for disrespect, 

disobedience, and insubordinate conduct towards two 
noncommissioned officers, in violation of Article  91 and Article 
92 of the Uniform Code of Military Justice  (UCMJ), respectively. 
Petitioner was awarded 14 days restriction,  14 days extra duties 
and a forfeiture of 7 days pay per month for 2 months.  The NJP 
authority suspended the forfeiture of 7 days pay per month  for 2 

Subi :  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR) APPLICATION 

months  for a  period of  3 months.  Petitioner acknowledged 
understanding  of his appeal and  indicated that he intended to 
appeal; however, Petitioner did not appeal the punishment. 

d.  On 8 August 2

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0

1

1

Senior Defense 

 

Counsel, Marine Corps Base, Hawaii submitted a request for 
relief of NJP.  The basis of relief was that the noncommissioned 
officers "abandoned their rank" prior to providing  instruction 
and directing corrective action to the Petitioner, a 
subordinate. 

4.  Analvsis 

a.  There is no "obvious or blaring" injustice in the 

conduct of Petitioner's NJP.  Petitioner was simply 
insubordinate toward his superior NCO's.  The instructions and 
counselings given to the Petitioner by his superiors were legal 
and  Petitioner had duty to obey.  Therefore, Petitioner's 
inappropriate and sarcastic comments display a total disregard 
for authority and was a breach  of discipline punishable under 
the UCMJ.  Whether  Petitioner's superior's "disliked" Petitioner 
is immaterial.  Furthermore, Petitioner was advised of his 
rights regarding NJP and knowingly and voluntarily accepted NJP. 

b.  A  legal error, however, did occur, albeit not raised by 

the Petitioner, in the imposition of NJP punishment regarding 
the forfeiture of 7 days pay  for 2 months.  A company grade 
officer imposing NJP, only has the authority to award the 
forfeiture of 7 days pay  for 1 month.  Although 'Petitioner 
acknowledged understanding of the notification and election of 
rights prior to the imposition of NJP, and acknowledged 
understanding of his appeal rights post NJP, we question why he 
failed to submit an appeal regarding this unauthorized 
punishment.  Regardless, that portion of the punishment that 
extends to forfeiture of 7 days pay per month  for a second month 
was an illegal punishment. 

c.  Additionally,  the LEGADMINMAN provides detailed 

instructions for completing the Unit  Punishment Book  (UPB) form 
(NAVMC 10132) which is utilized to record the imposition of NJP 
for enlisted personnel.  After review of the UPB, we identified 
the following discrepancies, item #8 states forfeiture of 7 days 
pay per month  for 2 months, where forfeitures should always be 

Subj:  BOARD  FOR  CORRECTION OF NAVAL  RECORDS  (BCNR) APPLICATION 

stated  in whole dollar amounts, and item #11 was not  signed by 
the officer imposing NJP.  Neither of these administrative 
errors were addressed by  Petitioner.  Additionally neither of 
these administrative errors merit  relief. 

d.  Captain Hennessey's contention that Petitioner's NJP  is 

unjust due to the noncommissioned officers "abandonment of their 
rank" is disingenuous.  First, there is no evidence to 
s u b s t a n t i a t e t c l a i m .  Second, and more 
importantly, although non-judicial punishment  is an 
administrative proceeding and not a criminal trial,  Petitioner 
after having  the opportunity to review the evidence and consult 
with counsel, pleaded  guilty to the two violations of Article 
91, UCMJ. 

5.  Conclusion.  For the reasons noted, we recommend that 
Petitioner's  request that his NJP be  removed from his record be 
denied; however,  that his  record be  corrected to reflect 
forfeiture of only 7 days pay per month  for 1 month. 

Judge Advocate  Division