DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-510

0

AEG
#648-01
19 November 2002

Docket 

Dear Mr.
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
Your allegations of error and
application on 13 November 2002.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
In addition,' the Board considered the advisory
and policies.
opinion dated 24 September 2002 from the Judge Advocate Division,
a copy of which is attached.
Headquarters Marine Corps (HQMC),
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.
You were commissioned a second lieutenant (O-l) in the Marine
Corps Reserve on 14 august 1981 and immediately began a period of
extended active duty.
On 7 January 1882 you requested assignment
to aviation training.
In connection with your application for
this program, you signed a pre-printed Student Naval Aviator
Training Agreement, dated 15 January 1982, that reads, in part,
as

follows:
RESERVE OFFICER
In connection with my request for assignment to aviation
training in the Naval Aviator Program, I agree to serve on
extended active duty for forty-eight (48) months from the
date of my designation as a Naval Aviator Officer, and
understand that a request for release from active duty
prior to completion of that minimum period will normally be
rejected.
In
this agreement, the pre-printed words and figures "forty-eight
(48)" have been lined out and the handwritten words and figures

~.

1

" have been written in.

These changes have been

(X0) of HMM-364, a Major (MAJ; O-4) S.

About a month later, you were
(1STLT).

"fifty-four (54)
initialed, but the initials are illegible.
You successfully completed training and, on 3 June 1983, were
designated a naval aviator.
advanced to first lieutenant  
On 26 October 1983 you reported for duty with Heavy Helicopter
On 8 February 1984, the command queried HQMC
Squadron (HMH) 463.
HQMC
concerning the lack of a service agreement in your record.
citing the service agreement of 15
responded on 28 February 1984,
January 1982 and, based on your designation as a naval aviator on
3 June 1983, calculated that your active service obligation
extended to 1 December 1987.
For more than two years after assignment to HMH-463, you served
However, the fitness reports in the
in a satisfactory manner.
record reflect that you were ranked below your peers and had
problems getting along with others.
On 8 May 1986, while temporarily assigned to Medium Helicopter
Squadron (HMM) 364 on a unit deployment program, you requested
mast with the Commanding General (CG) First Marine Aircraft Wing.
In that request, you cited a letter of 22 March 1986 in which you
complained of harassment and verbal abuse by the executive
On 10 May 1986 a
officer 
Lieutenant Colonel (LTCOL; O-5) E was appointed to investigate
your allegations.
On 27 May 1986 the Commanding Officer (CO),
(MAG) 24 requested that you receive a psychological evaluation
and cited your behavior while deployed, such as making
allegations against other members of the squadron which resulted
A psychological evaluation
in an early return from deployment.
A notation on
was conducted and disclosed nothing significant.
the CO's request states that you were returned to flight status.
LTCOL E submitted a report of his investigation on 30 May 1986
and concluded that although MAJ S was disliked by many members of
LTCOL E further found that
HMM-364, he was a competent officer.
"there is no evidence of other than well-intentioned counseling
LTCOL E also pointed out that
of 
you had been counseled by others, had a record of poor
and were late to work without
cooperation and disrespect,
justification on two occasions.
disciplined for failure to go to your place of duty at the
appropriate time.
Meanwhile, on 19 May 1986 the CO, MAG 36 received an anonymous
letter containing allegations of misconduct against the CO and
Accordingly on 22 May 1986, a LTCOL R was
the 
His report on 10 June
appointed to conduct an investigation.
1986 concluded that the 
accomplished aviator," but that his

X0, 

MAJ S, "is a respected and

X0 of HMM-364.

Marine Aircraft Group

(1STLT P; [you]) by (MAJ S)."

LTCOL E recommended you be

"intensity of effort was not

2

(1STLT P) was not a well thought of officer, even

(1STLT P) was counseled on his attitude on several

conducive to good results from all, and alienated a few officers,
although those questioned agree that (he) was working for the
betterment of the squadron and the professional development of
Junior Officers."
escalated into fraternization by MAJ S but, due to his "prudent
judgment,
LTCOL R did not let you off so lightly, finding, in part, as
follows:
That 
disliked by some.
That 
occasions by both seniors and peers.
That (MAJ S) exercised broad latitude and tolerance for
(1STLT P).
That (!STLT P) lies.
That 
argumentative.
That 
Military Justice) on two occasions, 5 and 6 May 1986.
That 
That 
superior officers, those being (MAJ S) and Captain (CAPT;
O-3) [Pe].
That 

(1STLT P) violated uniform guidance.
(1STLT P) was belligerent and disrespectful to

(1STLT P) violated Article 86 UCMJ (Uniform Code of

(1STLT P) was uncooperative, manipulative and

LTCOL R also cited an incident that could have

It did not.

(1STLT P) disliked (MAJ S).

Concerning the allegation of lying, LTCOL R cited a statement
from CAPT Pe to the effect that you initially told him the flight
jacket you were wearing was not Navy issue, but later admitted
that it was.
In his report, LTCOL R opined that you were "possessed of an
extremely poor attitude, tended towards anger, (were)
belligerent, and violated the UCMJ."
filed for absence without leave,
and conduct unbecoming an officer.
Despite the recommendations of 
action was action was taken against you as a result of their
investigations.
July 1986 you were promoted to CAPT.
On 17 December 1986, nonjudicial punishment (NJP) action was
initiated against you for the following specifications of

LTCOLs E and R, no disciplinary
Documentation in the record indicates that on 1

He recommended charges be

disrespect to a superior officer

3

disrespect, disobedience and dereliction of duty, in violation of
UCMJ articles 89, 90, and 92, respectively:

.. 

. . 

. . 

. . 

. . 

. . 

. did, 

. .on or about 11
. 

. by
. and by saying

. having received a lawful command
. . 

t his superior commissioned officer, 
. (MAJ B) was talking to him, 

In that (CAPT P; [you])  
December 1986, behave himself with disrespect toward (MAJ
B) 
contemptuously turning from him and walking away from him
while 
to (MAJ B), "yes sir," or words to that effect in a
contemptuous tone of voice while coming to an exaggerated
position of attention after having been commanded to return
by (MAJ B).
In that (CAPT P),  
from (LTCOL P), his superior commissioned officer, 
. to
"give me that paperwork," or words to that effect, did, 
.. 
. on or about 11 December 1986, willfully disobey the same.
In that (CAPT P), who knew of his duties as Squadron Duty
8 November 1986 to about
Officer 
0745, 9 November 1986, was derelict in the performance of
those duties in that he willfully failed to: eat one meal
at Pless Hall; inventory the keys in the key locker;
inspect the Squadron hanger; inspect the Squadron working
spaces; inspect the Squadron flight line; informally
inspect building 1604, the Squadron barracks, twice during
the day; inspect the grounds of building 1604, the squadron
barracks, prior to 0630; make a logbook entry that the
orders pertaining to the Squadron duty have been read and
understood; make a logbook entry that all keys in the key
locker have been inventoried; make logbook entries
commenting on the results of his inspection of the Squadron
the Squadron working spaces,
Barracks, the Squadron hanger,
and make a logbook entry
and the Squadron flight line;
noting the quantity and quality of the food served at Pless
Hall, as it was his duty to do 

. from about 0745,

. . 
.

1STLT T.

The Notification and Election of Rights pertaining to the charges
reflects that they were based on the squadron's duty log and
orders pertaining to the duties of the officer of the day, and
statements from LTCOL P and a 
On 24 December 1986, after an extensive NJP hearing, the CO, MAG
24 found that you had committed the above offenses and imposed a
punitive letter of reprimand.
but the appeal was denied by the CG, 
Brigade (MAB).
On 7 January 1987 a field flight performance board (FFPB)
convened because of the allegations of misconduct lodged against
you and a medical grounding chit submitted by the squadron CO,
In connection
apparently due to stress caused by those charges.
with the FFPB, you were directed to undergo a second
psychological evaluation to determine your fitness for duty. That

You subsequently appealed the NJP,

lst Marine Amphibious

4

In its report of 14 January 1987, the FFPB

Upon review of the FFPB, higher authorities 

evaluation found no abnormal behavior and recommended your return
to flight duty.
concurred, citing your "sound reputation as a pilot," and the
fact that you had met all applicable aviation requirements.
However, the FFPB also noted "antagonistic and rude behavior
towards all authority, specifically, your threat to "get (MAJ S)
and recommended disciplinary
if it's the last thing I do,"
action.
non-
concurred with the recommendation for restoration of your flight
status due to the NJP and other instances of inappropriate
behavior.
On 3 March 1987 the CO, MAG 24 reported to HQMC that he had
imposed NJP on you.
lSt MAB, who recommended initiation of administrative
CG,
separation action because of your
demeanor, coupled with  
position of authority  
Meanwhile, documentation in the record indicates that NJP action
was initiated in February 1987 based on allegations of misconduct
that occurred on 9 Januar
MAB conduct NJP proceedings in lieu
requested that the CG,
1
However, a charge sheet reflects that on 4 March
of your CO.
1987 court-martial charges were preferred against you alleging
the following specifications of disrespect and disobedience, in
violation of UCMJ Articles 89 and 90, respectively:

This report was subsequently endorsed by the
"poor professional attitude and

. complete disregard for anyone in a
. . 
.‘I

On 17 February 1987 you

SY 1987.

. . 

 

. . 

. . 

.. . 

. did  

, on or about 9 January

behave with disrespect toward (MAJ B) 

In that (CAPT P),
1987
. by
conte;ptuously ignoring (MAJ B) while he was talking to
(Petitioner); by contemptuously refusing to respond to
questions directed toward him by (MAJ B); and by
contemptuously placing smokeless tobacco juice and saliva
into (MAJ B's) motorcycle helmet.
In that (CAPT P),  
from (MAJ B) . . .
report and verify the
therein," or words to that effect, did 
January 1987, willfully disobey the same.
In that (CAPT P)  
from (MAJ B)  
or words to that effect, did  
1987, willfully disobey the same.

. having received a lawful command
. . 
to "look over part 'A' of your fitness
accuracy of the information contained
. on or about 9

., having received a lawful command
“stay in my office until I get back"
, on or about 9 January

. . 
. to 

.. . 

. 

. 

. . 

As required by Rule for Courts-Martial (RCM) 307(b), an accuser
swore that he had personal knowledge of the charges or had
investigated them and believed them to be true.
the CO, MAG 24 appointed an officer to conduct an investigation
pursuant to UCMJ Article 32.

On 5 March 1987

5

The CG, 

On 31 March 1987 the Commandant of the Marine Corps (CMC)
initiated administrative separation action against you by reason
of misconduct, including commission of serious military offenses,
poor performance resulting from gross indifference, and
discreditable involvement with military authorities; and
substandard performance of duty, including leadership
deficiencies, lack of proficiency, failure to discharge duties,
sustained poor performance as shown by your fitness reports, and
In support of
failure to comply with standards of deportment.
these allegations, CMC cited the CO's report of 13 March 1987 and
and your entire military
the preferred charges of 4 March 1987,
lst MAB was directed to convene a board
personnel file.
of inquiry (BOI).
On 22 April 1987 the CO withdrew the charges preferred on 4 March
1987 "in consideration of (CAPT P's) pending (BOI) which will
consider (his) performance and conduct, including the conduct
which forms the basis for the charges preferred on 4 March 1987."
On 8 May 1987 you submitted a  request for resignation, citing
your "complete lack of confidence in the judgment, integrity and
abilities of my senior officers." However, you withdrew this
request shortly before the BOI met.
The BOI, whose voting members were a Colonel 
MAJ, met on 18 and 26 May 1987.
your counsel declined to challenge any of these members for
cause.
documentation, including the charge sheet of 4 March 1987, which
was admitted in evidence over the objection of your counsel.
verbatim record contains nearly 250 pages of testimony, including
that of MAJ B, and a CAPT K, who testified about the events
The BOI also considered
resulting in the court-martial charges.
a statement from CAPT K concerning those events.
During closing argument, without objection, the recorder stated
as follows concerning some of the misconduct of record:

The BOI then considered a voluminous amount of

After an extensive voir dire,

(O-6), a LTCOL and a

The

. . 

LaR) 

. acting (CO) in July of
(D) isrespect to (LTCOL  
1986, by throwing a set of captain bars on the colonel's
desk, telling the colonel to keep them, and walking out of
the office.
(D)isrespect to (MAJ B) on 11 December 1986 by walking away
from him when being spoken to, and when called back, by
assuming an exaggerated position of attention and shouting,
"Yes, sir."
(D) isrespect to (MAJ B) on 9 January 1987 by contemptuously
refusing to acknowledge his presence, by contemptuously
refusing to answer his questions,
placing smokeless tobacco juice in (MAJ B's) helmet.

(and) by contemptuously

6

(D)isrespect  to (MAJ S) on 22 April 1986, by throwing down
a pencil, throwing down a schedule, gathering up his gear
and walking out of the room.
(L)ying to a senior officer, (CAPT Pe), by stating that his
Navy issue flight jacket was an imitation he bought in
Korea.
(F)raternization  with his crew chief, a corporal 
. by
calling the corporal by his first name and by allowing the
corporal to call him Pete.
(0)btaining  and wearing a tee shirt that said "Nail the
Knife," and depicting a knife having a nail driven into it
with a knife bleeding, and by showing this shirt and
describing its implication to junior Marines during the
fall of 1986, indicating that it depicted (MAJ S), a senior
officer.
(L)ying to either (LTCOL P) or (MAJ H) or both, in December
1986 by telling (MAJ H) that his child lost his pilot's
logbook, and by telling (LTCOL P) that the pilot's logbook
was in the mail.

. . 

By a 2-l vote, the BOI recommended

The minority member recommended discharge

After considering all the-evidence of record, the BOI unanimously
found that you had committed misconduct as alleged, and were
guilty of the allegations of substandard performance of duty,
except those charges pertaining to a lack of proficiency and
failure to discharge duties.
a general discharge.
under other than honorable conditions.
On 1 June 1987 you requested release from active duty, citing the
15 January 1982 training agreement and contending as follows:
No service contract exists for any obligated service. My
attempts to be released from active service have been
either rejected or not acted upon.
(The training agreement) implies a modification to a non-
existent contract, yet, it too, expires on this date
(lJun87).
either implied or otherwise,
Since any obligated service,
does not exist, I request an immediate release from active
duty.

Your CO endorsed this request on 3 June 1987 and noted that you
"signed a training agreement to serve on active duty for 54
,The CO
months from the date of designation as a naval aviator."
then expanded on your contention as follows:

(CAPT P) claims that the period of extended active duty of
54 months was pen changed by person or persons unknown from

7

4a(l) and 

48 months, thus his service agreement expired 870601 vice
871201 as contained in his service records.
2 July 1987 CMC disapproved your 

releaSe 

 for 

reqUeSt

4a(2) of the HQMC advisory opinion.

lSt MAB concurred with the majority recommendation

On 
active duty.
After the CG, 
of the BOI for a general discharge, the case was submitted to
HQMC.
On 20 July 1987 the Deputy Chief of Staff for Manpower
recommended such action to the Secretary of the Navy (SECNAV).
On 21 July 1987 the Assistant Secretary of the Navy (Manpower and
Reserve Affairs), acting for SECNAV, approved this
Accordingly, you received a general discharge on
recommendation.
3 August 1987.
The Board first considered your contention that the service
obligation in the agreement of 15 January 1982 was improperly
changed from 48 to 54 months and, accordingly, you were
improperly held on active duty after 1 June 1987, four years
However, the Board
after your designation as a naval aviator.
rejected this contention, in part, for the reasons set forth in
The
paragraphs 
Board also noted that the comment in the footnote to paragraph
4a(2) concerning your mental state was superfluous and added
nothing to the otherwise cogent analysis.
The Board also found that 54 months clearly was the correct
service obligation.
a 48-month obligation for a student naval aviator, however,
Marine Corps Bulletin (MCBUL) 1542 of 11 July 1980 changed this
obligation to 54 months, effective 1 January 1981, and stated
that this change would be reflected in an upcoming revision to
MC0 
1542.1D, issued on 16 July
MCBUL 5215 of
1981, called for 54 months of obligated service.
19 March 1990 shows that this directive was not superseded by  
1542.13 until 18 July 1988.
obligation history maintained by the Manpower Policy and Plans
Division of HQMC reflects that from 1 January 1981 until 15 July
1989, the service obligation for student naval aviators was 54
months.
The Board also rejected your allegation that as a result of LTCOL
R's investigation, you were ordered to undergo a psychological
examination.
The record is clear that your CO ordered such an
examination on 27 May 1986,
less than a week after LTCOL R was
directed to investigate the anonymous letter, and about two weeks
before he submitted his report.
apparently was favorable and,
although LTCOL R's report is very
critical of you, it does not come to any conclusion concerning
your medical or mental state.
The Board also could not find that any of the adverse actions
taken against you resulted from any sort of conspiracy or
agreement between MAJ S and LTCOL 

Copies of the foregoing documentation are enclosed.

LaR, or any harassment or 

Further, the evaluation

Marine Corps Order (MCO) 

1542.1C called for

1542.1C.

Such a revision, 

MC0 

from

MC0
Additionally, an active duty service

anti-

8

The record contains no such

Additionally, the record

Clearly, the charge

court-

Semitism by either officer.
evidence, in fact, the investigation reports of LTCOLs E and R
and no improper agreement,
state that MAJ S was not at fault,
conspiracy or harassment was mentioned.
clearly shows that the CO of MAG 24 imposed the NJP of 24
as a result of your disrespect and
December 1986, in part,
The court-martial charges
disobedience toward MAJ B and LTCOL P.
of 4 March 1987 resulted from similar misconduct to MAJ B.
Although the BOI considered the investigations of LTCOLs E and R
which documented your antagonism toward MAJ S, the administrative
separation action was primarily based on the NJP and 
Further, you had an opportunity to explain your
martial charges.
However, the BOI, composed of
situation to the BOI, and did so.
obviously found no merit in your
three senior unbiased officers,
assertions.
The Board also found no merit in your contention that the
allegations set forth in the charge sheet should not have been
raised at the BOI since those charges had already been withdrawn.
Paragraph 10 of enclosure (8) to SECNAV Instruction (SECNAVINST)
1920.6A, which was in effect at the time, stated that at a BOI
the rules of evidence do not apply; oral or written matter not
and evidence need only be
admissible at trial may be accepted;
authentic, relevant, material and competent.
sheet was admissible because it set forth offenses and was sworn
Additionally, testimony was presented from
to by the accuser.
two witnesses on the allegations of misconduct set forth in the
charge sheet.
the convening authority
Concerning the withdrawal of charges,
clearly took that action only because he intended that they be
Rule for Courts-Martial (RCM) 604
fully evaluated by the BOI.
states that charges may be withdrawn from a court-martial "for
any reason."
The discussion following that rule suggests that
However, RCM
charges that are withdrawn should be dismissed.
401(c)(l) states that dismissal does not bar further disposition
RCM 306(c)(2)
of the charges in accordance with RCM 306.
specifically provides for disposition of charges through
administrative action, and the discussion following that rule
states that such action includes administrative separation.
Accordingly, the Board concluded that even though the charges of
4 March 1987 arguably should have been dismissed after being
withdrawn, this failure did not preclude the BOI from considering
the charge sheet.
The Board also concluded that the action by the Judge Advocate
removing the charge sheet from the
General in February 1990,
Officer Performance File maintained by an office within HQMC,
does not compel its removal from your official record.
regard, as previously noted, the charge sheet was properly
introduced in evidence at the BOI,
in your record.

In this
and the BOI is properly filed

9

. . 

. . 

. but in no

Paragraph 

4b(l) of Part V to the  Manual for 

. unless the demand is voluntarily

Accordingly, separation was appropriate.

In a related matter, the Board found no impropriety in the
failure to try you by court-martial after you apparently refused
NJP for the charges and specifications set forth on the charge
sheet.
Courts-
Martial  states that even if a servicemember demands trial by
court-martial, "it is within the discretion of the commander
whether to forward or refer charges for trial  
event may (NJP) be imposed  
withdrawn."
The Board also considered whether your discharge should be set
but concluded that no such action
aside or recharacterized,
The BOI findings and recommendations were
should be taken.
supported by the testimony and evidence introduced during the
proceedings.
Concerning the characterization of service, paragraph lb of
1920.6A stated that in a finding of
enclosure (5) to SECNAVINST 
misconduct by an officer normally requires a characterization of
under other than honorable conditions.
fortunate to receive a general discharge, under honorable
conditions.
Consequently, there is no reason to remove any documentation from
Accordingly,
your record, or set aside or change your discharge.
your application has been.denied.
members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
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.

The names and votes of the

Therefore, you were

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures:
JAM4 Memo of 
MCBUL 1542 of 
MC0 
1542.1D of 
MCBUL 5215 of 
MPP-33 USMC ADS0 History of 

24Sep02
lOJu180
16Ju181 (excerpts)
19Mar90 (excerpt)

lOJu190

10