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
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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
0
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
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