DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                  2 NAVY ANNEX

    WASHINGTON DC 20370-5100 TRG
                                                      Docket No: 841-02
                                                      25 February 2003







      This is in reference to your application for correction of your naval
      record pursuant to the provisions of Title 10 of the 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 25
      February 2003. 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, a copy of which is enclosed.

      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








                           DEPARTMENT OF THE NAVY
                   HEADQUARTERS UNITED STATES MARINE CORPS
                            2 NAVY ANNEX
                             WASHINGTON, DC 20380—1775
                       IN REPLY REFER TO:
                                        1070
JAM4

DEC 23 2002
      MEMORANDUM FOR THE     EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
                          NAVAL RECORDS

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


      1.    We are asked to provide an opinion on Petitioner’s request for
      removal from his service record book (SRB) and official military
      personnel file (OMPF) of all entries related to his non-judicial
      punishment (NJP) of 23 May 2001, and upon Petitioner’s request to be
      reinstated to the grade of sergeant (paygrade E-5), with all back pay
      and allowances.

      2.    We recommend that Petitioner’s request for relief be denied. Our
      analysis follows.

      3.    Background

          a.     On 2 February 2001, a Marine lieutenant and his wife made
      sworn complaints to a command investigating officer indicating that,
      on or about 2300 hours 28 January 2001, a female passenger in
      Petitioner’s car exposed her breasts to them, and moments later to
      other unknown persons in a taxi cab. The lieutenant averred that (1)
      the woman was sitting next to Petitioner (the driver) in the front
      passenger seat of the vehicle, (2) that Petitioner laughed after the
      woman exposed her breasts, (3) that the woman then exposed her bare
      buttocks to the occupants of the taxi, and (4) that Petitioner slapped
      the woman’s bare buttocks. Subsequent investigation determined that
      Petitioner was the driver of the car and that the woman who exposed
      herself was a Dentalman Apprentice

          b.     In early February 2001, Petitioner told the investigating
      officer during an interview that he remembered nothing out of the
      ordinary happening on the ride home that evening. Specifically,
      Petitioner told the investigating officer, “I am uncertain to which
      people were in my car, but I think it was LCpl, Cpl  and a girl named
        To my knowledge, no one in my car exposed themselves to anyone at
      anytime.”

          c.     On 2 March 2001, charges were preferred against Petitioner
      alleging dereliction of duty1, false official statement, disorderly
      conduct, and an indecent act, in violation of Articles 92(3), 107, and
      134 of the. Uniform Code of Military Justice (UCMJ), respectively. The
      specification alleging false official statement read:


      1 Military custom and tradition establish the duty of the senior
      Marine present on liberty to take reasonable steps to curtail or
      prevent juniors from committing misconduct.


Subj: BOARD FOR CORRECTION O~ NAVAL RECORDS (BCNR) APPLICATION

      In that  u.s. Marine Corps, Marine Wing Communication Squadron  18,
      Marine Air Control Group 18, 1st Marine Aircraft Wing, Okinawa, Japan,
      on active duty, did, at Okinawa, Japan, on or about 28 January 2001,
      with intent to deceive, make to Captain   U.S. Marine Corps, an
      official statement, to wit: “I am uncertain to which people were in my
      car, but I think it was girl named    To my knowledge no one in my car
      exposed themselves to anyone at anytime,” which statement was false in
      that Dentalman Apprentice    U.S. Navy, was seated in the
      front passenger seat an      s e exposed herself on two occasions, and
      was then known by the said Sergeant    to be so false.

      d.    On 15 March 2001, the Commanding Officer, Marine Air Control
Group 18, the Convening Authority, referred the charges to a special court-
martial.

      e.    On 23 May 2001, Petitioner signed a pretrial agreement with the
Convening Authority wherein he agreed to plead guilty to the charge and
specification alleging false official statement; in exchange, the Convening
Authority agreed to dispose of the charges at NJP (vice a court-martial).
Qualified military defense counsel fully advised Petitioner of the meaning
and effect of the agreement, and all its attendant effects and
consequences.

      f.    On 23 May 2001, Petitioner received NJP for dereliction of duty
and false official statement, in violation of Articles 92(3) and 107 of the
Uniform Code of Military Justice (UCMJ), respectively.2 Petitioner pleaded
guilty to making a false official statement, but not guilty to dereliction
of duty. Petitioner was found guilty of both offenses and was awarded
forfeiture of $700.00 pay per month for 2 months, 45 days restriction and
extra duty to run concurrently without suspension from duty, and reduction
to the grade of corporal (paygrade E-4).

      g.    On 30 May 2001, Petitioner appealed the NJP. Despite his plea of
guilty to making a false official statement, Petitioner reverted to his
earlier claim that “At no time during the ride home was I aware that
anything of this nature occurred.” In his appeal. Petitioner claimed that
he pleaded guilty at NJP to avoid the greater penalties available at a
special court-martial.

      h.    On 5 June 2001, Petitioner’s appeal was denied. The Commanding
Officer, Marine Air Control Group 18, did, however, suspend 35 days of
restriction in consideration of previous restrictions upon Petitioner’s
liberty.

2 Per paragraph 1 of the pretrial agreement, the specification alleging an
indecent act was withdrawn.












                                      2
Subj:. BOARD RECTION OF NAVAL RECORDS (BCNR) APPLICATION


4. Analysis. No legal error occurred in the imposition of Petitioner’s NJP.
Petitioner, however, claims that his NJP was unjust because he did not
commit the offenses. Petitioner’s claims are without merit.

    a.     Petitioner’s resurgent claims of innocence are without merit. A
preponderance of the evidence considered at Petitioner’ Article 15, UCMJ,
hearing supports the findings that Petitioner committed the offenses
alleged. By his plea of guilty, Petitioner admitted that he made the false
official statement with the intent to deceive the investigating officer.
That admission, by itself, is sufficient to support the commander’s
determinations. The statements of the lieutenant and his wife, along with
the other occupants of the vehicle, corroborate Petitioner’s admissions and
conclusively establish his guilt. The NJP authority also had the
opportunity to question Petitioner and view his demeanor; his
determinations concerning the credibility of witnesses should not be
disturbed. We further note that Petitioner was afforded all applicable
procedural rights at NJP, including the right to consult with military
counsel.

    b.     Petitioner’s application for relief is also a transparent
request for clemency. We note that clemency is an Executive power, reserved
to the President and, in matters concerning military justice, to the
Convening Authority. Petitioner’s punishment was within statutorily
authorized limits and is not manifestly unjust. Moreover, Petitioner now
contends that his plea of guilty at NJP was dishonest, offered as a matter
of convenience to escape harsher punishment. Thus, Petitioner’s prayer for
mercy is made with unclean hands.

5. Conclusion. Accordingly, for the reasons noted, we recommend that
Petitioner’s request for relief be denied.





                                                   Head, Military Law
Branch
                                                   Judge Advocate Division


















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