DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

SMC
Docket No: 08343-00
1 November 2001

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj :

Ref:

Encl:

GYSG
REVIEW OF NAVAL RECORD

USM

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

lDecO0 w/attachments

lMarO1 and

(1) DD Form 149 dtd 
(2) HQMC MIFD memo dtd 
JAM3 memo dtd 17MayOl
(3) Subject’s ltr dtd 
24JulOl 
(4) HQMC JAM7 memo dtd 

and MIFD memo dtd 13SepOl

(5) Subject’s naval record

w/encls
15AugOl

1. Pursuant to reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure
(1) with this Board requesting, in effect, that his naval record be corrected by removing the
Commanding Officer, Marine Security Guard Battalion letter dated 17 December 1996,
Subject: Relief for Cause from the Marine Security Guard Program in the Case of
petitioner]. A copy of this letter is at Tab A.

2. The Board, consisting of Messrs. Hogue, Kastner and Mazza, reviewed Petitioner’s
allegations of error and injustice on 1 November 2001, and pursuant to its regulations,
determined that the corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.

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.

In their original advisory opinions at enclosure 

(2), the Headquarters Marine Corps

(HQMC) offices having cognizance over the subject matter addressed in Petitioner’s
application commented to the effect that his request did not warrant favorable action.

c. Enclosure (3) is Petitioner

’s rebuttal to the unfavorable advisory opinions at

enclosure 

(2), with which he included additional supporting evidence.

d.

In their revised opinions at enclosure 

(4), the cognizant HQMC offices

’s request be approved in light of the additional evidence at

recommended that Petitioner
enclosure (3).

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosure 
following corrective action.

(4), the Board finds the existence of an injustice warranting the

RECOMMENDATION:

a. That Petitioner ’s naval record be corrected by removing the Commanding Officer,
Marine Security Guard Battalion letter 1626 LEG dated 17 December 1996, Subject: Relief
for Cause from the Marine Security Guard Program in the Case of [Petitioner].

b. 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

C. That any material directed to be removed from Petitioner

’s naval record be returned

to the Board, together with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross reference being made a part of
Petitioner ’s naval record.

4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) 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

JONATHAN S. 

Acting Recorder

RUSKIN

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 authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.

r< W. DEAN PFEIFFER

Executive Director

NAVY
HEADGUARTERS  UNITED STATES MARINE CORPS

DEPARTMENT OF THE  

3280 RUSSELL ROAD

QUANTICO, VIRGINIA 22134-5103

4-;:,?L/ 
i,

-3. 

c.[

IN 

REPLY  REFER TO:

MEMORANDUM FOR EXECUTIVE
NAVAL RECORDS

107 0
MIFD
MAR
1 
DIRECTOR, BOARD FOR CORRECTION OF

Subj:

OF GUNNERY

SERGEAN

We reviewed Gunnery Sergeant

1.
supporting documents concerning
the Commanding Officer,
dated 17 
(OMPF) .

Dee 96 from his official military personnel files

Marine Security Guard Battalion letter

application and
for removal of

MC0 

1070.14A, Official Military Personnel Files  

2.
Contents, sets forth guidance and provides information on the
contents of the OMPF in use at Headquarters, U. S. Marine Corps
and the policies and procedures for forwarding documents
authorized for inclusion in the OMPF. determining whether or
not certain documents are placed in the OMPF.

(OMPF)

3.
The 
Gunnery 

followin
Sergean

opinions are provided pertaining to
request:

a.

The letter is from his former commander requesting

s that reflects unfavorably upon Gunnery

5e(2) 

(b)5 of 

The letter meets the criteria set forth in paragraph
MC0 

1070.14A  for inclusion in his OMPF.

b.
-
C .

Gunnery Sergeant

claim that  

I'Without the

there is no longer justification for my
Paragraph 6d of Part 5, Manual for

NJP in my records,
relief" is irrelevant.
Courts-Martial, authorizes a commander who imposes nonjudicial
punishment, or a successor in command,
This authority to set aside punishments and restore rights,
privileges, and property affected by the executed or unexecuted
portion of a punishment should ordinarily be exercised only
within a reasonable time after the punishment has been executed.
In this connection,
absence of unusual circumstances.

four months is a reasonable time in the

may set aside punishment.

Subj:

d.

set aside on 7 Jun 00,

Gunnery Sergeant
4

OF GUNNERY
USMC

SERGEAN

n-judicial punishment was
r.

4.

In view of the above, we recommend that:

The Board disapprove Gunnery  

Sergea

a.

to remove the Commanding Officer, Marine Security Guard
Battalion letter dated 17  

Dee 96 from his OMPF.

request

b.

We defer further comments/opinions concerning the setting
Headquarte?,  U. S.

aside of his non-judicial punishment to the  
Marine Corps division JAM.

5.

Point of contact i

Head, Field Support Branch
Manpower Management Information
Systems Division

HEADQUARTERS UNITED STATES MARINE CORPS

DEPART,MENT  OF 
2 NAW ANNEX

TI-IE NAVY

WASHINGTON, DC 20380-1775

IN REPLY REFER TO.

1070
JAM 3
1 MAY 
1 
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

2001

Subj:

BOARD FOR CORRECTION OF NAVAL

SERGEAN

NERY 
SMC

ATION

Encl:

(1) MSG  

BnO 

1300.2G

We are asked to provide an opinion on Petitioner's request

1.
for the removal from his official military personnel file  
of the 17 December 1996 letter from his commanding officer (CO)
to the Commandant of the Marine Corps  
Petitioner's relief for cause from the Marine Security Guard
(MSG) program.
2.
analysis follows.

We recommend that the requested relief be denied.

(CMC) notifying CMC of

Our

(OMPF)

3.

Background

a.

On 17 December 1996, Petitioner, then a staff sergeant,
received non-judicial punishment (NJP) for disobeying a lawful
order and false official statement, in violation of Articles 92
and 107 of the Uniform Code of Military Justice (UCMJ),
respectively.
punishment Petitioner was awarded at NJP.
provided does include, however,
Petitioner's CO notifying CMC of Petitioner's relief for cause
from the MSG program.

The information provided does not indicate what

a 17 December 1996 letter from

The information

b.

On 7 June 2000,

Petitioner's current CO set aside the 17

Analysis.

December 1996 NJP.
Petitioner then successfully petitioned to
have the adverse fitness report prepared on the occasion of the
NJP removed from his OMPF.
4.
Petitioner claims that his NJP was the sole basis
for his subsequent relief-for-cause,
and argues that the letter
notifying CMC of his relief-for-cause should be removed from his
OMPF because his NJP was later set aside.
without merit.
e-mail that he supported Petitioner's request to set aside the
NJP, the e-mail does not corroborate the premise of Petitioner's
argument, i.e., that the NJP was the sole basis for his  

First, although Petitioner's CO indicated in an

This argument is

relief-

Subj:

BOARD FOR CORRECTION OF NAVAL

SERGEAN

NERY 
SMC

ATION

not as a record of NJP.

Third, the

Enclosure (1).

Second, the 17 December 1996 letter was included in

for-cause.
Petitioner's OMPF as a historical record of a specific career
event, his relief-for-cause,
CO was not required to relieve Petitioner simply because he had
received NJP.
In the same vein, the CO could
have relieved Petitioner without awarding him NJP.
The fact
that the CO decided to relieve Petitioner when he was not
required to do so therefore reflects on the overall quality of
Petitioner's service,
NJP -- four years after the fact -- does not obviate the
significance of the CO's separate action relieving Petitioner.
As a result, the set-aside action neither warrants nor requires
removal of the letter that memorializes Petitioner's relief. At
most, redaction of any specific reference to the NJP contained
in the 17 December 1996 letter would arguably be warranted based
on the set-aside.
Expungement of the entire letter, however, is
clearly not warranted.
5.
that Petitioner's request for relief be  

and the decision to set aside Petitioner's

Conclusion.

Based on the information provided, we recommend

deni&d.

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 

NAVY ANNEX

WASHINGTON, DC 20380-1775

IN REPLY REFER TO:

1070
JAM7

1  5 AUG  2001

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

SERGEAN

ERY 
MC

(BCNR) APPLICATION

Our

The 17

Background.

On 17 May 2001,

At that time,

Petitioner did not provide enough credible information

We now recommend that the requested relief be granted.

1.
We are again asked to provide an opinion on Petitioner's request
for the removal from his official military personnel file (OMPF) of
the 17 December 1996 letter from his commanding officer to the
Commandant of the Marine Corps (CMC) notifying CMC of Petitioner's
relief for cause from the Marine Security Guard (MSG) program.
2.
analysis follows.
3.
we provided a comment recommending
that the requested relief be denied.
Petitioner had
not provided sufficient information to warrant removal of all record
of his relief for cause from the MSG program from his OMPF.
Specifically,
to foreclose the possibility that his relief for cause had been
based on other facts and circumstances besides, or in addition to,
the facts and circumstances that led to the imposition of NJP on
December 1996 NJP had previously been
%&_e~%~&&%&&.&~
Petitioner now submits a letter from his
commanding officer at the time of Petitioner's relief, which states,
"The sole reason for the relief of (petitioner) was the NJP of 17
December 1996".
4.
conclude that no facts and circumstances,
to the imposition of NJP on 17 December 1996, were the basis for
Petitioner's relief for cause from the MSG program.
5.
that Petitioner's request for relief be granted.

The new information provides sufficient basis to

other than those that led

Conclusion.

Based on the information provided, we recommend

Analysis.

Assistant Head, Military Law Branch
Judge Advocate Division

DEPARTMENT OF THE

 

NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

QUANTICO, VIRGINIA 22134-5103

IN REPLY REFER To:
1070
MIFD

MEMORANDUM FOR EXECUTIVE
NAVAL RECORDS

DIRECTOR, BOARD FOR CORRECTION OF

Subj:

Ref:

OF GUNNERY SERGE
USMC

(a) My MEMORANDUM FOR Executive Director, Board for

Correction of Naval Records letter 1070 MIFD dated
1 Mar 2001

We were asked to review Gunnery Sergeant

1.
application for the second time concerning his request for
removal of the Commanding Officer, Marine Security Guard
Battalion letter dated 17  
personnel files (OMPF).

Dee 96 from his official military

Gunnery Sergeant

2.
support of his request for removal of the letter from his OMPF.

ovides additional documentation in

The following additional comments/opinions concerning the

3.
letter are provided:

a.

Paragraph 2 of the letter specifically addresses non-
judicial punishment (NJP) dated 17 December 1996 as the basis
for his relief for cause which was subsequently set aside and no
longer is a part of his official records.

b.

Gunnery 

Sergean
letter dated 29 June 20
his tenure as a Detachment Commander and that the sole
his relief was the   NJP  dated  17 December 1996.

ormer commander states in his
s a solid performer during

reason for

C .

Gunnery 

Sergean

conduct or performance
was anything less than outstanding.

ecords do not show
nure as Detachment

that his
Commander

In view of the above,

4.
recommendations in the refere
Sergean
Board approve Gunnery  
the Commanding Officer,
dated 17 

Dee 96 from his OMPF.

it is requested that our

Marine Security Guard Battalion letter

d to read that the
equest for removal of

Subj:

OF GUNNERY SERGE

5.

Point of contact i

~$~~~~rD!~sion

agement Information

2