DEPARTMENT  OF THE  NAVY 

BOARD  FOR  C O R R E C T I O N  O F  NAVAL  RECORDS 

2  NAVY  ANNEX 

W A S H I N G T O N   D C   2 0 3 7 0 - 5 1 0 0  

TRG 
Docket No: 1543-02 
30 April  2003 

This is in reference to your application for corr ction of your 
naval record pursuant to the provisions of Title ? n  of the United 
States Code, section 1552. 

9 

Board.  Documentary 
your application, 
thereof, your 
and policies. 
opinion 
is enclosed. 

After careful and conscientious consideration of 
record, the Board found that the evidence submitt 
insufficient to establish the existence of probab 
error or injustice.  In this connection the Board 
concurred with the comments contained in the advi 

Accordingly, your application. has been denied.  T  e names and 
votes of the members of the panel will be 

upon request. 

It is regretted that the circumstances of your ca e are such that 
favorable action cannot be taken.  You are entitl d to have the 
Board reconsider its decision upon subm~ssion of  ew and material 

evidence or other matter not previously considere 4 by the Board. 
existence of probable material error or injustice. 3 

In this regard, it is important to keep in mind that a 
presumption of regularity attaches to all officia  records. 
Consequently, when applying for a correction of a  official naval 
record, the burden is on the applicant to demonst ate the 

Sincerely, 

Enclosure 

W .   DEAN  PFEIFFER 
Executive Director 

IN REPLY REFER TO: 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL 

RECORDS 

Subj:  BOARD FO 
ICO MAJO 

)  APPLICATION 

1.  We are asked to provide an opinion on Petitioner's  request 
for the removal from his service record book  (SRB) m d  official 
military personnel file (OMPF) of all entries related to the 
non-judicial punishment  (NJP) he received on 9 December 1999. 

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

a.  On 16 October 1999, Petitioner, a Marine m a ~ ~ r ,  went to 

a bar in Monterey, CAI and became publicly intoxicated. 
Petitioner was the class leader of a Korean language class at 
the Defense Language Institute (DLI) .  ~etitioner's class was 
comprised of both officer.and enlisted students.  In the 
presence of junior enlisted s.ervicemembers, Petitioner 
fraternized with a female Army specialist (paygrade E-4) 
assigned to his class by slow dancing with her and.allowing her 
to place her hands on his face and head as they danced. 

b.  On 9 December 1999, Petitioner received NJP for conduct 

unbecoming an officer and gentlemen in violation of Article 133, 
Uniform Code of Military Justice (UCMJ).  Petitioner was  awarded 
a Letter of Censure.  Petitioner did not appeal the NJP or 
Letter of Censure. 

4.  Analysis..  No legal error occurred in the imposition of 
Petitioner's NJP.  Petitioner, however, claims that his NJP was 
unjust and/or in error because he did not commit misconduct. 
Alternatively, Petitioner requests removal of the record as an 
act of clemency. 

a.  At the time of his NJP, Petitioner admitted his guilt. 

See paragraph 1.g of the summarized record.  The allegations 
were:  "In that Major 
U.S. Marine Corps, on 
active duty, did, at Monterey, California, on or about 16 
October 1999, wrongfully and dishonorably commit actc that 

Subj:  BOARD FOR CORRECTION OF NAVAL FlECORDS  (B  )  APPLICATION 

Ice w o R  oyUsMc 

leman, to wit: 

dancing 

constituted conduct unbecoming an 
in the presence of junior enlisted 
publicly intoxicated; 
with Private First Clas 
dancing allowing her 
See enclosure (3) to 
CG asked 
allegations as set 
the allegations. 
facts surrounding 
his earlier express admissions. 

b.  We note that the acts for which NJP wa 

legally sufficient to establish a violation of A 
UCMJ.  public intoxication alone can violate the 
Petitioner's public intoxication was attended by 
physical touching with a woman he knew was a jun 
service member of the command.  The videotape cl 
the female specialist stroking Petitioner's head 
overly familiar~manner. These acts took place i 
.  of other junior enlisted members of the command, 
knew they were present.  There is simply no doub 
constitute conduct unbecoming an officer and ge 
violation of Article 133, UCMJ.  Petitioner did no  appeal his 
NJP and the record reveals no error or injustice. 

c.  Petitioner also requests removal of the NJ  and related 

papers based upon his belief that this incident sh uld not 
"torpedo" his career.  Properly framed, these stat ments are a 
request for clemency.  We note that clemency is a  tter 
exclusively reserved to the convening authority, t e Commandant 
of the Marine Corps, the Secretary of the Navy and the 
President.  Consequently, Petitioner's plea for cl  ency to the 
Board of Corrections for Naval Records should be i  ored as it 

is a matter reserved to other agencies.  i 
5 July 01 statement of Major - ~orrm&ndin~ 
writes further that \\I had this conversation with L 1 Col 

least twice and passed this along to  jor-as 9 

Officer, DLI, raises an issue relevant-to the Board s 
consideration.  Major -writes 
if Major ~eneral-decided 
would award a 'non-punitive letter of caution.'"  M jor- 

that he was adv sed, 'that 

to use the NJP forum  at worst he 

-at 

d.  Althouah not contained within ~etitioner's ,eauest.  the 

- 

- 

Subj:  BOARD FOR CORRECTION OF NAVAL RECORDS  (BCNR 
ICO  MAJOR^ 

USMC 

APPLICATION 

many times.  I believe the assurances I passed 
contributed to his decision to accewt the NJP 
offered by-" 
Major 
entered into an agreement with Petitioher, that is now 

enforceable against the Government.  We conclude t 1: at Petitioner 

made some promise or de facto grant o  immunity, or 

TI'- issue raisedis whether 

o ~a~onJsis$D 
it was later 

has not met his burden to show that such a  promiselwas made. 

(1) Majo-never 

claims that he made a promise to 

the Petitioner.  Instead, he writes that he "belie 
'assurances"  he made 'contributed"  to Petitioner's 
accept NJP.  This noncommittal language does not m 
Petitioner's burden to show error or injustice. 

(2) The representation, as described by Major.- 

is 

incoherent.  A "non-punitive letter of caution" is not an 
authorized punishment under Article 15, UCMJ.  See Part V, 
Paragraph 5, Manual for Courts-Martial, (2000 Ed.) .  Rather, it 
is an administrative corrective measure imposed in lieu of NJP 
or courts-martial.  See Rule for Courts-Martial (R P.M.) 
306 (c) (2) . 

(3) In any event, ~ajor- 

had no a 
the CG.  If he made such representations, Major 
state directly. 

to bind 

should so 

(4) Furthermore, the claims contained i 
statement are directly contradicted by the offi 
this case.  Paragraph 1.d of the summarized rec 
"The CG asked if ~ a j o r m  had any questions 
maximum punishment that could be imposed.  Major 
he did not.  Paragraph 1.e of the summarized rec 
reads, "The CG then advised Major 
a trial and any determination of misconduct was 
by court-martial.  Further he was advised that 
~ u l e s  of Evidence did not apply.  Upon  [sic] gi 
notifications, Major -was 
asked if he stil 
agree to an Article 15 hearing.  ~ajor-i 
Thus, the record establishes that Major 
possible punishments and accepted NJP.' 

that 

It also strains credibility to believe that Petitioner, a M a ~ i n e  major on 
active duty, did not know when he accepted NJP that the record of NJP would 
be included in his OMPF and that this might negatively impact his career. 

Subj:  BOARD FOR 
ICO MAJOR 

)  APPLICATION 

5.  Conclusion.  Accordingly, we recomnend that t e requested 
relief be denied. 

Judge ~dvocate D i i  

Branch 
.sion