DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL
2 NAVY ANNE

X

  RECORD

S

WASHINGTON DC 20370-510

0

CRS
Docket No: 1487-02
18 September   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   18 September 2002.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
your application,
thereof,
and policies.
opinion furnished by Headquarters Marine Corps dated 8 June 2002,
a copy of which is attached.

Documentary material considered by the Board consisted of
together with all material submitted in support

Your allegations of error and

your naval record and applicable statutes, regulations

In addition, the Board considered the advisory

In this connection, the Board substantially

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.
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
copy to: Disabled American Veterans

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1775

MEMORANDUM FOR EXECUTIVE DIRECTOR

RECORDS

BOARD FOR CORRECTION OF NAVAL

Subj :

BOARD FOR CORRECTION OF NAVAL RECORDS  
IN THE CASE OF

-USMC

(BCNR) APPLICATION

Encl:

(1) Copy of Petitioner's NJP
(2) 

Sexua!~ harassment class rosters

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

1.
for reinstatement to the grade of corporal
In addition to other punishment,
current grade, lance corporal  
of non-judicial punishment

(LCpl), 

 

(Cpl), 

paygrade E-4.

Petitioner was reduced to her

(NJP) received on  

paygrade  E-3,  as a resuit
2001.

30 November  

We recommend that Petitioner's request for relief be denied.

2.
Our analysis follows.

.

(SSgt), 

Background.

paygrade E-6,

in violation of Article   134 of

3.
On 30 November 2001, Petitioner accepted
battalion level NJP for inappropriate conduct with a staff
sergeant 
the Uniform Code of Military Justice (UCMJ).
statements were reviewed and witnesses testified.
considering all the evidence,
Petitioner committed the offense.
Petitioner, then a Cpl,  
LCPl,
months,
the forfeiture of $600.00 pay per month for 2 months and 45 days
extra duties,
of her right to appeal to the Regimental Commander and she
elected not to appeal the punishment.
Petitioner was discharged from the Marine Corps.

paygrade  E-4, was awarded reduction to
paygrade E-3, forfeiture of $600.00 pay per month for   2

The NJP authority suspended

Enclosure (1) pertains.

for a period of 6 months.

and 45 days extra duties.

the battalion commander found the

On 10 February   2002,

Petitioner was notified

During the NJP

After

Analysis.

No legal error occurred in the imposition of NJP.

Petitioner now claims that her reduction to

4.
However,
 
E-3 was unfair because her conduct was the result of sexual
harassment and intimidation.
legality of her NJP and our review of her case confirms that
Petitioner was  
below,

Petitioner's claims are without merit.

afforQ:d  all of her NJP rights.

Petitioner does not question the

As 

discus,sed

paygrade

.

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

 

(BCNR) APPLICATION

a.

Procedural rights.

Based on the documentary evidence

Moreover,

Similarly, Petitioner was informed

the NJP proceeding was conducted

Petitioner makes no claim that her request for

If Petitioner truly believed she was not guilty

r-ights to which she was
Petitioner was advised of her right to counsel

provided by Petitioner,
properly and Petitioner received all the  
entitled at NJP.
on 29 November 2001 and requested military counsel on 30
November 2001.
military counsel was denied.
of her right to demand trial by court-martial but instead
accepted NJP.
then she should not have accepted NJP and instead forced the
Government to prove her guilt beyond a reasonable doubt at a
court-martial.
to 
LCpl was disproportionate to the offense or that her NJP was
unjust, then her appropriate course of action was to appeal her
NJP.
If appealed, Petitioner's NJP would have been reviewed by
the General Court-Martial Convening Authority to determine if
the punishment imposed was disproportionate or unjust.
Petitioner did not appeal her punishment and does not claim that
she was denied the right to do so.
Additionally, we also note
that the fact that Petitioner was taking medications as a result
of jaw surgery should not impact the legality of the NJP
proceeding. The
occurred prior to her surgery, and as discussed, she was able to
make numerous decisions on her rights at NJP to include
presenting her case before the NJP authority.

offenses that Petitioner was charged with

if Petitioner believed that reduction

However,

b.

NJP authority's interpretation of the facts.

The NJP

Based on the NJP summary contained in enclosure

Petitioner had an opportunity to present
to include evidence explaining

authority was in the best position to determine the facts
surrounding the case.
evidence regarding the offense,
her actions.
(I), Petitioner did in fact present evidence on her behalf.
Moreover, prior to finding Petitioner guilty, the NJP authority
asked if Petitioner had anything further to present and
Petitioner then   spoke to the NJP authority.
all the evidence,
preponderance of the evidence weighed against Petitioner.
However,
including names of individuals to support her case.
that based on Petitioner's comments many of these witnesses, if
not all,
believe such information was significant enough to present at

Petitioner now purports to offer additional information

the NJP authority believed that the

availaqe at the time of her NJP.

After considering

If she did not

We note

were 

Subj:

BOARD  FOR 

CORRECTION"OF  NAVAL RECORDS (BCNR) APPLICATION

her  NJP, then such information should not be considered after
the fact.

c.

Allegations of misconduct by NJP authority.

Petitioner

makes numerous assertions and allegations of misconduct by the
NJE' authority, the battalion  
non-commissioned officers.
absolutely no evidence to support her statements.

sel-geant major, and various staff
However, Petitioner provides

d.

Setting aside NJP.

A commander, who imposed NJP, or

may set aside executed or unexecuted

successor in command,
punishment only when the authority considering the case
believes, that, under all circumstances of the case,
punishment has resulted in clear  
effectively requested to have her entire NJP set aside. In
order to have a valid NJP,
Initially, Petitioner was awarded reduction to  
of pay, and extra duties with the latter two being suspended
6 months.
punishment that was actually imposed was the reduction to
Therefore, if Petitioner is reinstated to the rank of Cpl, the
effect would be that she never received a punishment, therefore
the NJP proceeding would be nullified.

 
expiratioi.of  the suspension period, the only

punishment must be imposed.

Petitioner has

injustice.l

At the 

LCpl, forfeiture

the

LCpl.

 

for-

e.

See enclosure (2).

Observation.
Petitioner allegedly endured over 6 months
of sexual harassment,
making it known to the command only after
being charged with violating Article 134, UCMJ.
We note that
that Petitioner attended at least two sexual harassment classes
during her 3-plus years at Inspector Instructor Staff
Staff), Alameda, California.
doubt, that based on the initial sexual harassment training
provided at boot camp and the refresher training provided by her
I&I unit, Petitioner knew the proper channels to follow in order
to make and substantiate a claim of sexual harassment.
made a timely report that she believed she was a victim of
sexual harassment when it first occurred, as taught in her
training,
her allegations.
feared for her safety as a reason for not reporting allegations
of sexual harassment.
had numerous  

her command would have been charged with investigating
Petitioner does not state that she

opportun$ties to report allegations of sexual

Based on Petitioner's own statement she

There is no

Moreover,

(I&I

 

Had she

' Part V,  

para.

6d, Manual for Courts-Martial, (2000 ed.).

3

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

harassment to Marines senior to herself, but choose not to
report her allegations.

Conclusion.

5.
relief be denied.

Accordinyly, 

WC‘ recommend that the requested

Assistant Head, Military Law
Branch, Judge Advocate Division

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